WARRANT AGREEMENT
This
Warrant Agreement made as of _____________, 2006, between Apex Bioventures
Acquisition Corporation, a Delaware corporation, with offices at 00 Xxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxxxxx 00000 (the “Company”),
and
Continental Stock Transfer & Trust Company, a New York corporation, with
offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Warrant
Agent”).
WHEREAS,
the Company is engaged in a public offering (the “Public
Offering”)
of
units (the “Units”)
and, in
connection therewith, has determined to issue and deliver up to 10,781,250
warrants (the “Public
Warrants”)
to the
public investors, each of such Public Warrants evidencing the right of the
holder thereof to purchase one share of common stock, par value $.0001 per
share, of the Company (the “Common
Stock”)
for
$6.00 per share, subject to adjustments as described herein;
WHEREAS,
the Company has filed, with the Securities and Exchange Commission, a
registration statement, No. 333-135755, on Form S-1, as amended (the
“Registration
Statement”),
for
the registration, under the Securities Act of 1933, as amended (the “Act”),
of,
among other securities, the Public Warrants and the Common Stock issuable upon
exercise of the Public Warrants;
WHEREAS,
the Company has determined to issue and deliver, as part of an Underwriter’s
purchase option, up to 562,500 warrants (the “Underwriter’s
Warrants”)
to CRT
Capital Group LLC (“CRT”
or the
“Underwriter”)
or its
designees, which warrants will be identical to the Public Warrants;
WHEREAS,
the Company is issuing 1,250,000 warrants in a private placement immediately
prior to the Public Offering, which warrants (the “Private
Warrants”
and,
with the Public Warrants and the Underwriter’s Warrants, the “Warrant(s)”)
will
be identical to the Public Warrants and Underwriter’s Warrants, subject to
certain exceptions, as set forth in the Registration Statement or
herein;
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and
the
Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption and exercise of the Warrants;
WHEREAS,
the Company desires to provide for the form and provisions of the Warrants,
the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights and immunities of the Company, the Warrant Agent and the
holders of the Warrants; and
WHEREAS,
all acts and things have been done and performed which are necessary to make
the
Warrants, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided herein, the legally valid and binding
obligations of the Company, and to authorize the execution and delivery of
this
Warrant Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
1. Appointment
of Warrant Agent.
The
Company hereby appoints the Warrant Agent to act as agent
for the
Company for the Warrants, and the Warrant Agent hereby accepts such appointment
and agrees to perform the same in accordance with the terms and conditions
set
forth in this Agreement.
2. Warrants.
2.1 Form
of Warrant.
Each
Warrant shall be issued in registered form only, shall be in substantially
the
form of Exhibit
A
hereto,
the provisions of which are incorporated herein, and shall be signed by, or
bear
the facsimile signature of, the Chairman of the Board or, the Chief Executive
Officer or the President, and the Treasurer, Secretary or Assistant Secretary
of
the Company, and shall bear a facsimile of the Company’s seal. In the event the
person whose facsimile signature has been placed upon any Warrant shall have
ceased to serve in the capacity in which such person signed the Warrant before
such Warrant is issued, it may be issued with the same effect as if he or she
had not ceased to be such at the date of issuance.
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2.2 Effect
of Countersignature.
Unless
and until countersigned by the Warrant Agent pursuant to this Agreement, a
Warrant shall be invalid and of no effect and may not be exercised by the holder
thereof.
2.3 Registration.
2.3.1 Warrant
Register.
The
Warrant Agent shall maintain books (“Warrant Register”), for the registration of
the original issuance and transfers of the Warrants. Upon the initial issuance
of the Warrants, the Warrant Agent shall issue and register the Warrants in
the
names of the respective holders thereof in such denominations and otherwise
in
accordance with instructions delivered to the Warrant Agent by the
Company.
2.3.2 Registered
Holder.
Prior
to due presentment for registration of transfer of any Warrant, the Company
and
the Warrant Agent may deem and treat the person in whose name such Warrant
shall
be registered upon the Warrant Register (“registered
holder”),
as the
absolute owner of such Warrant and of each Warrant represented thereby
(notwithstanding any notation of ownership or other writing on the warrant
certificate made by anyone other than the Company or the Warrant Agent), for
the
purpose of any exercise thereof, and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the
contrary.
2.4 Detachability
of Warrants.
The
securities comprising the Units will not be separately transferable until after
the earlier to occur of the expiration or termination of the underwriter’s
over-allotment option, but in no event will separate trading of the securities
comprising the Units begin until the Company files a Current Report on Form
8-K
which includes an audited balance sheet reflecting the receipt by the Company
of
the gross proceeds of the Public Offering, including the proceeds received
by
the Company from the exercise of CRT’s over-allotment option, if the
over-allotment option is exercised prior to the filing of the Form
8-K.
3. Terms
and Exercise of Warrants.
3.1 Warrant
Price.
Each
Warrant shall, when countersigned by the Warrant Agent, entitle the registered
holder thereof, subject to the provisions of such Warrant and of this Warrant
Agreement, to purchase from the Company the number of shares of Common Stock
stated therein, at the price of $6.00 per whole share, subject to the
adjustments provided in Section 4 hereof and in the last sentence of this
Section 3.1. The term “Warrant
Price”
as
used
in this Warrant Agreement refers to the price per share at which Common Stock
may be purchased at the time a Warrant is exercised. The Company, in its sole
discretion, may lower the Warrant Price at any time prior to the Expiration
Date
(as defined below); provided, that any such reduction shall be identical in
percentage terms among all of the Warrants, except that any amendment to the
terms of the Underwriter’s Warrants shall be subject to any limitations and
conditions that may be imposed by NASD Corporate Financing Rule 2710.
3.2 Duration
of Warrants.
A
Warrant may be exercised only during the period (“Exercise
Period”)
commencing on the later of (a) the consummation by the Company of a merger,
capital stock exchange, asset acquisition, stock purchase or other similar
business combination, as described more fully in the Company’s Registration
Statement (“Business
Combination”),
or
(b) [one
year from the date of the prospectus] 2007,
and
terminating at 5:00 p.m., New York City time, on the earlier to occur of (i)
[four
years from the date of the prospectus],
2010,
or (ii) the date fixed for redemption of the Warrants as provided in
Section 6 of this Agreement (“Expiration
Date”).
Except with respect to the right to receive the Redemption Price (as set forth
in Section 6 hereunder), each Warrant not exercised on or before the
Expiration Date shall become void, and all rights thereunder and all rights
in
respect thereof under this Agreement shall cease at the close of business on
the
Expiration Date. The Company may extend the duration of the Warrants by delaying
the Expiration Date.
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3.3 Exercise
of Warrants.
3.3.1 Payment.
Subject
to the provisions of the Warrant and this Warrant Agreement, a Warrant, when
countersigned by the Warrant Agent, may be exercised by the registered holder
thereof by surrendering it, at the office of the Warrant Agent, or at the office
of its successor as Warrant Agent, in the Borough of Manhattan, City and State
of New York, with the subscription form, as set forth in the Warrant, duly
executed, and by paying in full, in lawful money of the United States, in cash,
good certified check or good bank draft payable to the order of the Company
(or
as otherwise agreed to by the Company), the Warrant Price for each full share
of
Common Stock as to which the Warrant is exercised and any and all applicable
taxes due in connection with the exercise of the Warrant, the exchange of the
Warrant for the Common Stock, and the issuance of the Common Stock; provided,
however, that the holder of a Private Warrant may, in lieu of payment of the
Exercise Price, surrender its Private Warrant for that number of shares of
Common Stock equal to the quotient obtained by dividing (x) the product of
(1) the number of shares of Common Stock underlying the surrendered Private
Warrant and (2) the difference between the Fair Market Value (defined
below) and the Exercise Price, by (y) the Fair Market Value. The
“Fair
Market Value”
shall
mean (i) if the Common Stock is listed on a national securities exchange
(including, without limitation, the American Stock Exchange and the Nasdaq
Stock
Market) or quoted on the OTC Bulletin Board (or any successor electronic
inter-dealer quotation system), the average closing price of a share of Common
Stock for the thirty (30) trading days immediately preceding the date of
determination of the Fair Market Value in the principal trading market for
the
Common Stock as reported by the exchange or the quotation system, as the case
may be; (ii) if the Common Stock is not listed on a national securities
exchange or quoted on the OTC Bulletin Board (or any successor electronic
inter-dealer quotation system), but is traded in the residual over-the-counter
market, the closing bid price for a share of Common Stock on the last trading
day preceding the date in question for which such quotations are reported by
the
Pink Sheets, LLC or similar publisher of such quotations; and (iii) if the
fair market value of the Common Stock cannot be determined pursuant to
clause (i) or (ii) above, such price as the Board of Directors of the
Company shall determine, in good faith.
3.3.2 Issuance
of Certificates.
As soon
as practicable after the exercise of any Warrant and the clearance of the funds
in payment of the Warrant Price or upon surrender of the Private Warrant (or
portion thereof) as set forth in Section 3.3.1(b), the Company shall issue
to
the registered holder of such Warrant a certificate or certificates representing
the number of full shares of Common Stock to which he, she or it is entitled,
registered in such name or names as may be directed by him, her or it, and,
if
such Warrant shall not have been exercised or surrendered in full, a new
countersigned Warrant for the number of shares as to which such Warrant shall
not have been exercised or surrendered. Notwithstanding the foregoing, the
Company shall not be obligated to deliver any securities pursuant to the
exercise of a Warrant unless (a) a registration statement under the Act with
respect to the Common Stock issuable upon exercise of such Warrants is effective
and a current prospectus relating to the shares of Common Stock issuable upon
exercise of the Warrants (a “Prospectus”) is available for delivery of the
Warrant holders or (b) in the opinion of counsel to the Company, the exercise
of
the Warrants is exempt from the registration requirements of the Act and such
securities are qualified for sale or exempt from qualification under applicable
securities laws of the states or other jurisdictions in which the registered
holder resides. Warrants may not be exercised by, or securities issued to,
any
registered holder in any state in which such exercise or issuance would be
unlawful. In the event a registration statement under the Act with respect
to
the Common Stock underlying the Warrants is not effective or a prospectus is
not
available, or because such exercise would be unlawful with respect to a
registered holder in any state, the registered holder shall not be entitled
to
exercise such Warrants and such Warrants may have no value and expire worthless.
In no event will the Company be obligated to pay such registered holder any
cash
consideration upon exercise (unless pursuant to Section 4.5) or otherwise
“net cash settle” the Warrant.
3.3.3 Valid
Issuance.
All
shares of Common Stock issued upon the proper exercise or surrender of a Warrant
in conformity with this Agreement shall be validly issued, fully paid and
nonassessable.
3.3.4 Date
of Issuance.
Each
person or entity in whose name any such certificate for shares of Common Stock
is issued shall, for all purposes, be deemed to have become the holder of record
of such shares on the date on which the Warrant was surrendered and payment
of
the Warrant Price was made, irrespective of the date of delivery of such
certificate, except that, if the date of such surrender and payment is a date
when the stock transfer books of the Company are closed, such person shall
be
deemed to have become the holder of such shares at the close of business on
the
next succeeding date on which the stock transfer books are
open.
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4. Adjustments.
4.1 Stock
Dividends - Split-Ups.
If,
after the date hereof, and subject to the provisions of Section 4.6 below,
the number of outstanding shares of Common Stock is increased by a stock
dividend payable in shares of Common Stock, or by a split-up of shares of Common
Stock, or other similar event, then, on the effective date of such stock
dividend, split-up or similar event, the number of shares of Common Stock
issuable on exercise of each Warrant shall be increased in proportion to such
increase in outstanding shares of Common Stock.
4.2 Aggregation
of Shares.
If
after the date hereof, and subject to the provisions of Section 4.6, the
number of outstanding shares of Common Stock is decreased by a consolidation,
combination, reverse stock split or reclassification of shares of Common Stock
or other similar event, then, on the effective date of such consolidation,
combination, reverse stock split, reclassification or similar event, the number
of shares of Common Stock issuable on exercise of each Warrant shall be
decreased in proportion to such decrease in outstanding shares of Common
Stock.
4.3 Adjustments
in Exercise Price.
Whenever the number of shares of Common Stock purchasable upon the exercise
of
the Warrants is adjusted, as provided in Sections 4.1 and 4.2 above, the
Warrant Price shall be adjusted (to the nearest cent) by multiplying such
Warrant Price, immediately prior to such adjustment, by a fraction, (a) the
numerator of which shall be the number of shares of Common Stock purchasable
upon the exercise of the Warrants immediately prior to such adjustment, and
(b)
the denominator of which shall be the number of shares of Common Stock so
purchasable immediately thereafter.
4.4 Extraordinary
Dividends.
If
the
Company, at any time during the Exercise Period, shall pay a dividend in
cash,
securities or other assets to the holders of Common Stock (or other shares
of
the Company’s capital stock into which the Warrants are convertible), other than
(w) as described in Sections 4.1, 4.2 or 4.5, (x) regular quarterly or other
periodic dividends, (y) in connection with the conversion rights of the holders
of Common Stock upon consummation of the Company’s initial Business Combination
(as such term is used in the Registration Statement) or (z) in connection
with
the Company’s liquidation and the distribution of its assets upon its failure to
consummate a Business Combination (any such non-excluded event being referred
to
herein as an "Extraordinary Dividend"), then the Warrant Price shall be
decreased, effective immediately after the effective date of such Extraordinary
Dividend, by the amount of cash and/or the fair market value (as determined
by
the Company’s Board of Directors, in good faith) of any securities or other
assets paid on each share of Common Stock in respect of such Extraordinary
Dividend.
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4.5 Replacement
of Securities upon Reorganization, etc.
In case
of any reclassification or reorganization of the outstanding shares of Common
Stock (other than a change covered by Sections 4.1 or 4.2 hereof or one
that solely affects the par value of such shares of Common Stock), or, in the
case of any merger or consolidation of the Company with or into another
corporation (other than a consolidation or merger in which the Company is the
continuing corporation and that does not result in any reclassification or
reorganization of the outstanding shares of Common Stock), or, in the case
of
any sale or conveyance to another corporation or entity of the assets or other
property of the Company as an entirety or substantially as an entirety, in
connection with which the Company is dissolved, the Warrant holders shall
thereafter have the right to purchase and receive, upon the basis and upon
the
terms and conditions specified in the Warrants and in lieu of the shares of
Common Stock of the Company immediately theretofore purchasable and receivable
upon the exercise of the rights represented thereby, the kind and amount of
shares of stock or other securities or property (including cash) receivable
upon
such reclassification, reorganization, merger or consolidation, or upon a
dissolution following any such sale or transfer, that the Warrant holder would
have received if such Warrant holder had exercised his, her or its Warrant(s)
immediately prior to such event; and if any reclassification also results in
a
change in shares of Common Stock covered by Sections 4.1 or 4.2, then such
adjustment shall be made pursuant to Sections 4.1, 4.2, 4.3 and this
Section 4.5. The provisions of this Section 4.5 shall similarly apply
to successive reclassifications, reorganizations, mergers or consolidations,
sales or other transfers.
4.6 Notices
of Changes in Warrant.
Upon
every adjustment of the Warrant Price or the number of shares issuable upon
exercise of a Warrant, the Company shall give written notice thereof to the
Warrant Agent, which notice shall state the Warrant Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of a Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Upon the occurrence of any event specified in Sections
4.1, 4.2, 4.3, 4.4 or 4.5 the Company shall give written notice to each Warrant
holder, at the last address set forth for such holder in the Warrant Register,
of the record date or the effective date of the event. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of
such
event.
4.7 No
Fractional Shares.
Notwithstanding any provision contained in this Warrant Agreement to the
contrary, the Company shall not issue fractional shares upon exercise of
Warrants. If, by reason of any adjustment made pursuant to this Section 4,
the holder of any Warrant would be entitled, upon the exercise of such Warrant,
to receive a fractional interest in a share, the Company shall, upon such
exercise, round up to the nearest whole number the number of the shares of
Common Stock to be issued to the Warrant holder.
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4.8 Form
of Warrant.
The
form of Warrant need not be changed because of any adjustment pursuant to this
Section 4, and Warrants issued after such adjustment may state the same
Warrant Price and the same number of shares as is stated in the Warrants
initially issued pursuant to this Agreement. However, the Company may, at any
time, in its sole discretion, make any change in the form of Warrant that the
Company may deem appropriate and that does not affect the substance thereof,
and
any Warrant thereafter issued or countersigned, whether in exchange or
substitution for an outstanding Warrant or otherwise, may be in the form as
so
changed.
5. Transfer
and Exchange of Warrants.
5.1 Registration
of Transfer.
The
Warrant Agent shall register the transfer, from time to time, of any outstanding
Warrant into the Warrant Register, upon surrender of such Warrant for transfer,
properly endorsed with signatures properly guaranteed and accompanied by
appropriate instructions for transfer. Upon any such transfer, a new Warrant
representing an equal aggregate number of Warrants shall be issued and the
old
Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled
shall
be delivered by the Warrant Agent to the Company from time to time upon the
Company’s request.
5.2 Procedure
for Surrender of Warrants.
Warrants may be surrendered to the Warrant Agent, together with a written
request for exchange or transfer, and, thereupon, the Warrant Agent shall issue
in exchange therefor one or more new Warrants as requested by the registered
holder of the Warrants so surrendered, representing an equal aggregate number
of
Warrants; provided, however, that, in the event a Warrant surrendered for
transfer bears a restrictive legend, the Warrant Agent shall not cancel such
Warrant and shall issue new Warrants in exchange therefor until the Warrant
Agent has received an opinion of counsel for the Company stating that such
transfer may be made and indicating whether the new Warrants must also bear
a
restrictive legend.
5.3 Fractional
Warrants.
The
Warrant Agent shall not be required to effect any registration of transfer
or
exchange which will result in the issuance of a warrant certificate for a
fraction of a warrant.
5.4 Service
Charges.
No
service charge shall be made for any exchange or registration of transfer of
Warrants.
5.5 Warrant
Execution and Countersignature.
The
Warrant Agent is hereby authorized to countersign and to deliver, in accordance
with the terms of this Agreement, the Warrants required to be issued pursuant
to
the provisions of this Section 5, and the Company, whenever required by the
Warrant Agent, will supply the Warrant Agent with Warrants duly executed on
behalf of the Company for such purpose.
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6. Redemption.
6.1 Redemption.
Subject
to Section 6.4 hereof and the penultimate and final sentences of this
Section 6.1, not less than all of the outstanding Warrants may be redeemed,
at
the option of the Company, at any time after they become exercisable and prior
to their expiration, at the office of the Warrant Agent, upon the notice
referred to in Section 6.2, at the price of $.01 per Warrant (“Redemption
Price”),
provided that the volume weighted average price of the Common Stock has been
equal to or greater than $11.50 per share for any twenty (20) trading days
within a thirty (30) trading day period ending on the third business day prior
to the date on which notice of redemption is given. No Private Warrants shall
be
redeemable so long as such Private Warrant is held in the name of the original
person or entity to which the Company issued such Private Warrant.
Notwithstanding anything to the contrary contained herein, the Company shall
not
call the Warrants for redemption unless there is an effective registration
statement under the Act relating to the shares of Common Stock issuable upon
exercise of the Warrants and a prospectus is available.
6.2 Date
Fixed for, and Notice of, Redemption.
In the
event the Company shall elect to redeem all of the Warrants, the Company shall
fix a date for the redemption. Notice of redemption shall be mailed by first
class mail, postage prepaid, by the Company not less than 30 days prior to
the
date fixed for redemption to the registered holders of the Warrants to be
redeemed at their last addresses as they shall appear on the Warrant Register.
Any notice mailed in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the registered holder received such
notice.
6.3 Exercise
After Notice of Redemption.
The
Warrants may be exercised in accordance with Section 3 of this Warrant
Agreement at any time after notice of redemption shall have been given by the
Company pursuant to Section 6.2 hereof and prior to the time and date fixed
for redemption. On and after the redemption date, the record holder of the
Warrants shall have no further rights except to receive, upon surrender of
the
Warrants, the Redemption Price.
6.4 Outstanding
Warrants Only.
The
Company understands that the redemption rights provided for by this
Section 6 apply only to outstanding Warrants. To the extent a person holds
rights to purchase Warrants, such purchase rights shall not be extinguished
by
redemption. However, once such purchase rights are exercised, the Company may
redeem the Warrants issued upon such exercise, provided that the criteria for
redemption is met.
7. Other
Provisions Relating to Rights of Holders of Warrants.
7.1 No
Rights as Stockholder.
A
Warrant does not entitle the registered holder thereof to any of the rights
of a
stockholder of the Company, including, without limitation, the right to receive
dividends, or other distributions, exercise any preemptive rights to vote or
to
consent or to receive notice as stockholders in respect of the meetings of
stockholders or the election of directors of the Company or any other
matter.
7.2 Lost,
Stolen, Mutilated, or Destroyed Warrants.
If any
Warrant is lost, stolen, mutilated or destroyed, the Company and the Warrant
Agent may, on such terms as to indemnity or otherwise as they may in their
discretion impose (which terms shall, in the case of a mutilated Warrant,
include the surrender thereof), issue a new Warrant of like denomination, tenor
and date as the Warrant so lost, stolen, mutilated or destroyed. Any such new
Warrant shall constitute a substitute contractual obligation of the Company,
whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shall
be at any time enforceable by anyone.
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7.3 Reservation
of Common Stock.
The
Company shall at all times reserve and keep available a number of its authorized
but unissued shares of Common Stock that will be sufficient to permit the
exercise in full of all outstanding Warrants issued pursuant to this Warrant
Agreement.
7.4 Registration
of Common Stock.
The
Company agrees that prior to the commencement of the Exercise Period, it shall
use its best efforts to prepare and file with the Securities and Exchange
Commission a post-effective amendment to the Registration Statement, or a new
registration statement, for the registration under the Act of the Common Stock
issuable upon exercise of the Warrants, and it shall take such action as is
necessary to qualify for sale, in those states in which the Warrants were
initially offered by the Company, the Common Stock issuable upon exercise of
the
Warrants. In either case, the Company will use its best efforts to cause the
same to become effective on or prior to the commencement of the Exercise Period
and to maintain the effectiveness of such registration statement and ensure
that
a prospectus is available for delivery to the Warrant holders until the
expiration of the Warrants in accordance with the provisions of this Warrant
Agreement. In addition, the Company agrees to use its reasonable efforts to
register such securities under the blue sky laws of the states of residence
of
exercising warrant holders, if permitted by the blue sky laws of such
jurisdictions, in the event that an exemption is not available. In no event
will
the registered holder of a Warrant be entitled to receive a net-cash settlement
in lieu of physical settlement in shares of Common Stock, regardless of whether
the Company complies with this Section 7.4.
7.5 Limitation
on Monetary Damages.
In no
event shall the registered holder of a Warrant be entitled to receive
monetary damages for failure to settle any Warrant exercise if the Common
Stock
issuable upon exercise of the Warrants has not been registered with the
Securities and Exchange Commission pursuant to an effective registration
statement or if a current prospectus is not available for delivery by the
Warrant Agent, provided the Company has fulfilled its obligations under Section
7.4 to use its best efforts to effect such registration and ensure a current
prospectus is available.
8. Concerning
the Warrant Agent and Other Matters.
8.1 Payment
of Taxes.
The
Company will, from time to time, promptly pay all taxes and charges that may
be
imposed upon the Company or the Warrant Agent in respect of the issuance or
delivery of shares of Common Stock upon the exercise of Warrants, but the
Company shall not be obligated to pay any transfer taxes in respect of the
Warrants or such shares.
8.2 Resignation,
Consolidation, or Merger of Warrant Agent.
8.2.1 Appointment
of Successor Warrant Agent.
The
Warrant Agent, or any successor to it hereafter appointed, may resign its duties
and be discharged from all further duties and liabilities hereunder after giving
sixty (60) days’ notice in writing to the Company. If the office of the Warrant
Agent becomes vacant by resignation or incapacity to act or otherwise, the
Company shall appoint, in writing, a successor Warrant Agent in place of the
Warrant Agent. If the Company shall fail to make such appointment within a
period of 30 days after it has been notified in writing of such resignation
or
incapacity by the Warrant Agent or by the holder of the Warrant (who shall,
with
such notice, submit his, her or its Warrant for inspection by the Company),
then
the holder of any Warrant may apply to the Supreme Court of the State of New
York for the County of New York for the appointment of a successor Warrant
Agent. Any successor Warrant Agent, whether appointed by the Company or by
such
court, shall be a corporation organized and existing under the laws of the
State
of New York, in good standing and have its principal office in the Borough
of
Manhattan, City and State of New York, and be authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
federal or state authorities. After appointment, any successor Warrant Agent
shall be vested with all the authority, powers, rights, immunities, duties
and
obligations of its predecessor Warrant Agent with like effect as if originally
named as Warrant Agent hereunder, without any further act or deed; but, if
for
any reason it becomes necessary or appropriate, the predecessor Warrant Agent
shall execute and deliver, at the expense of the Company, an instrument
transferring to such successor Warrant Agent all the authority, powers, and
rights of such predecessor Warrant Agent hereunder; and, upon request of any
successor Warrant Agent, the Company shall make, execute, acknowledge, and
deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties and obligations.
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8.2.2 Notice
of Successor Warrant Agent.
In the
event a successor Warrant Agent shall be appointed, the Company shall give
notice thereof to the predecessor Warrant Agent and the transfer agent for
the
Common Stock not later than the effective date of any such
appointment.
8.2.3 Merger
or Consolidation of Warrant Agent.
Any
corporation into which the Warrant Agent may be merged or with which it may
be
consolidated or any corporation resulting from any merger or consolidation
to
which the Warrant Agent shall be a party shall be the successor Warrant Agent
under this Warrant Agreement without any further act on the part of the Company
or the Warrant Agent.
8.3 Fees
and Expenses of Warrant Agent.
8.3.1 Remuneration.
The
Company agrees to pay the Warrant Agent reasonable remuneration for its services
as Warrant Agent hereunder as set forth on Exhibit
B
hereto
and will reimburse the Warrant Agent upon demand for all expenditures that
the
Warrant Agent may reasonably incur in the execution of its duties
hereunder.
8.3.2 Further
Assurances.
The
Company agrees to perform, execute, acknowledge and deliver, or cause to be
performed, executed, acknowledged and delivered, all such further and other
acts, instruments and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing of the provisions of this Warrant
Agreement.
8.4 Liability
of Warrant Agent.
8.4.1 Reliance
on Company Statement.
Whenever, in the performance of its duties under this Warrant Agreement, the
Warrant Agent shall deem it necessary or desirable that any fact or matter
be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a statement signed by the Chief Executive Officer, Chief
Financial Officer or Chairman of the Board of the Company and delivered to
the
Warrant Agent. The Warrant Agent may rely upon such statement for any action
taken or suffered in good faith by it pursuant to the provisions of this Warrant
Agreement.
8.4.2 Indemnity.
The
Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant Agent
and
save it harmless against any and all liabilities, including judgments, costs
and
reasonable counsel fees, for anything done or omitted by the Warrant Agent
in
the execution of this Warrant Agreement, except as a result of the Warrant
Agent’s negligence, willful misconduct or bad faith.
8.4.3 Exclusions.
The
Warrant Agent shall have no responsibility with respect to the validity of
this
Warrant Agreement or with respect to the validity or execution of any Warrant
(except its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Warrant
Agreement or in any Warrant; nor shall it be responsible to make any adjustments
required under the provisions of Section 4 hereof or responsible for the
manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment; nor shall it, by
any
act hereunder, be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock to be issued pursuant
to this Warrant Agreement or any Warrant or as to whether any shares of Common
Stock will when issued be valid and fully paid and
nonassessable.
9
8.5 Acceptance
of Agency.
The
Warrant Agent hereby accepts the agency established by this Warrant Agreement
and agrees to perform the same upon the terms and conditions herein set forth
and, among other things, shall account promptly to the Company with respect
to
Warrants exercised and concurrently account for, and pay to the Company, all
moneys received by the Warrant Agent for the purchase of shares of the Company’s
Common Stock through the exercise of Warrants.
9. Warrant
Solicitation and Warrant Solicitation Fees.
9.1 The
Company has engaged CRT, on a non-exclusive basis, as its agent for the
solicitation of the exercise of the Warrants. The Company, at its cost, will
(i)
assist CRT with respect to such solicitation, if requested by CRT, and (ii)
provide CRT, and direct the Company’s transfer agent and the Warrant Agent to
deliver to CRT, lists of the record and, to the extent known, beneficial owners
of the Company’s Warrants. The Company hereby instructs the Warrant Agent to
cooperate with CRT in every respect in connection with CRT’s solicitation
activities, including, but not limited to, providing to CRT, at the Company’s
cost, a list of record and beneficial holders of the Warrants and circulating
a
prospectus or offering circular disclosing the compensation arrangements
referenced in Section 9.2 below to holders of the Warrants at the time of
exercise of the Warrants. In addition to the conditions set forth in Section
9.2, CRT shall accept payment of the warrant solicitation fee provided in
Section 9.2 only if it has provided bona fide services to the Company, at the
Company's written request, in connection with the exercise of the Warrants
and only to the extent that an investor who exercises his Warrants specifically
designates, in writing, that CRT solicited his exercise. In addition to
soliciting, either orally or in writing, the exercise of Warrants by a Warrant
holder, such services may also include disseminating information, either orally
or in writing, to Warrant holders about the Company or the market for the
Company’s securities, or assisting in the processing of the exercise of
Warrants.
9.2 In
each
instance in which a Warrant is exercised, the Warrant Agent shall promptly
give
written notice of such exercise to the Company and CRT (“Warrant
Agent’s Exercise Notice”).
If,
upon the exercise of any Warrant more than one year from the effective date
of
the Registration Statement, (i) the market price of the Company’s Common Stock
is greater than the Warrant Price, (ii) disclosure of compensation arrangements
between the Company and CRT with respect to the solicitation of the exercise
of
the Warrants was made both at the time of the Public Offering and at the time
of
exercise (by delivery of the Prospectus or as otherwise required by applicable
law, rule or regulation), (iii) the holder of the Warrant confirms in writing
that the exercise of the Warrant was solicited by CRT, (iv) the Warrant was
not
held in a discretionary account, (v) the solicitation of the exercise of the
Warrant was not in violation of Regulation M (as such rule or any successor
rule
may be in effect as of such time of exercise) promulgated under the Securities
Exchange Act of 1934, as amended, and (vii) CRT has received a written request
from the Company to solicit the exercise of the Warrants. then the Warrant
Agent, simultaneously with the distribution of the Common Stock underlying
the
Warrants so exercised in accordance with the instructions from the Company
following receipt of the proceeds to the Company received upon exercise of
such
Warrant(s), shall, on behalf of the Company, pay a fee of 2% of the Warrant
Price to Underwriter, provided that CRT delivers to the Warrant Agent within
ten
(10) business days from the date on which CRT has received the Warrant Agent’s
Exercise Notice, a certificate that the conditions set forth in the preceding
clauses (iii), (iv) and (v) have been satisfied. Notwithstanding the foregoing,
no fee will be paid to CRT with respect to the exercise by it or its affiliates
or the Company’s officers or directors of Warrants purchased by it or them and
still held by them for its or their own account. CRT and the Company may at
any
time during business hours, examine the records of the Warrant Agent, including
its ledger of original Warrant certificates returned to the Warrant Agent upon
exercise of Warrants.
10. Miscellaneous
Provisions.
10.1 Successors.
All the
covenants and provisions of this Warrant Agreement by or for the benefit of
the
Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns.
10.2 Notices.
Any
notice, statement or demand authorized by this Warrant Agreement to be given
or
made by the Warrant Agent or by the holder of any Warrant to or on the Company
shall be delivered by hand or sent by registered or certified mail or overnight
courier service, addressed (until another address is filed in writing by the
Company with the Warrant Agent) as follows:
00
Xxxx
Xxxx
Xxxxxxxxxxxx,
Xxxxxxxxxx 00000
Attn:
Chief Executive Officer
Any
notice, statement or demand authorized by this Warrant Agreement to be given
or
made by the holder of any Warrant or by the Company to or on the Warrant Agent
shall be delivered by hand or sent by registered or certified mail or overnight
courier service, addressed (until another address is filed in writing by the
Warrant Agent with the Company), as follows:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Compliance Department
with
a
copy in each case to (which shall not constitute notice):
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx X. Xxxxxxxx, Esq.
Any
notice, sent pursuant to this Warrant Agreement shall be effective, if delivered
by hand, upon receipt thereof by the party to whom it is addressed, if sent
by
overnight courier, on the next business day of the delivery to the courier,
and
if sent by registered or certified mail on the third day after registration
or
certification thereof.
10.3 Applicable
Law.
The
validity, interpretation, and performance of this Warrant Agreement and of
the
Warrants shall be governed in all respects by the laws of the State of Delaware,
without giving effect to conflict of laws. The Company hereby agrees that any
action, proceeding or claim against it arising out of or relating in any way
to
this Warrant Agreement shall be brought and enforced in the courts of sitting
in
San Mateo County, California, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served upon the Company may be served
by transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in
Section 10.2 hereof. Such mailing shall be deemed personal service and
shall be legal and binding upon the Company in any action, proceeding or
claim.
10
10.4 Persons
Having Rights under this Warrant Agreement.
Except
as provided in Section 10.8.3, nothing in this Warrant Agreement expressed
and
nothing that may be implied from any of the provisions hereof is intended,
or
shall be construed, to confer upon, or give to, any person or corporation,
other
than the parties hereto and the registered holders of the Warrants, any right,
remedy or claim under or by reason of this Warrant Agreement or of any covenant,
condition, stipulation, promise or agreement hereof. All covenants, conditions,
stipulations, promises and agreements contained in this Warrant Agreement shall
be for the sole and exclusive benefit of the parties hereto and their successors
and assigns and of the registered holders of the Warrants.
10.5 Examination
of the Warrant Agreement.
A copy
of this Warrant Agreement shall be available at all reasonable times at the
office of the Warrant Agent in the Borough of Manhattan, City and State of
New
York, for inspection by the registered holder of any Warrant. The Warrant Agent
may require any such holder to submit his, her or its Warrant for
inspection.
10.6 Counterparts;
Facsimile Signatures.
This
Warrant Agreement may be executed in any number of counterparts, and each of
such counterparts shall, for all purposes, be deemed to be an original, and
all
such counterparts shall together constitute one and the same instrument.
Facsimile signatures shall constitute original signatures for all purposes
of
this Warrant Agreement.
10.7 Effect
of Headings.
The
section headings herein are for convenience only and are not part of this
Warrant Agreement and shall not affect the interpretation thereof.
10.8 Amendments.
10.8.1 This
Agreement and any Warrant certificate may be amended by the parties hereto
by
executing a supplemental warrant agreement (a “Supplemental Agreement”), without
the consent of any of the Warrant holders, for the purpose of (i) curing
any ambiguity, or curing, correcting or supplementing any defective provision
contained herein, or making any other provisions with respect to matters or
questions arising under this agreement that is not inconsistent with the
provisions of this agreement or the Warrant certificates, (ii) evidencing
the succession of another corporation to the Company and the assumption by
any
such successor of the covenants of the Company contained in this agreement
and
the Warrants, (iii) evidencing and providing for the acceptance of
appointment by a successor Warrant Agent with respect to the Warrants,
(iv) adding to the covenants of the Company for the benefit of the Holders
or surrendering any right or power conferred upon the Company under this
Agreement, or (viii) amending this agreement and the Warrants in any manner
that the Company may deem to be necessary or desirable and that will not
adversely affect the interests of the Warrant holders in any material
respect.
10.8.2 The
Company and the Warrant Agent may amend this agreement and the Warrants by
executing a Supplemental Agreement with the consent of the Holders of not fewer
than a majority of the unexercised Warrants affected by such amendment, for
the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of this Agreement or of modifying in any manner the rights
of
the Holders under this agreement; provided,
however,
that,
without the consent of each of the Warrant holders affected thereby, no such
amendment may be made that (i) changes the Warrants so as to reduce the
number of Shares purchasable upon exercise of the Warrants or so as to increase
the Exercise Price (other than as provided by Section 4),
(ii) shortens the period of time during which the Warrants may be
exercised, (iii) otherwise adversely affects the exercise rights of the
Holders in any material respect, or (iv) reduces the number of unexercised
Warrants the holders of which must consent for amendment of this agreement
or
the Warrants.
10.8.3 Notwithstanding
anything contained herein to the contrary, Section 9 may be amended only by
the
parties hereto with the consent of CRT. The parties hereto acknowledge that
CRT
shall be an intended third-party beneficiary of this Section 10.8.3 and Section
9.
11
10.9 Severability.
This
Warrant Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of this Warrant Agreement or of any other term or provision
hereof. Furthermore, in lieu of any such invalid or unenforceable term or
provision, the parties hereto intend that there shall be added as a part of
this
Warrant Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and
enforceable.
(Remainder
of page intentionally left blank. Signature page immediately
follows.)
12
IN
WITNESS WHEREOF, this Warrant Agreement has been duly executed by the parties
hereto as of the day and year first above written.
| APEX BIOVENTURES ACQUISITION CORPORATION | ||
| |
|
|
| By: | ||
|
K.
Xxxxxxx Xxxxxxx, Chairman and Chief Executive Officer
|
||
|
CONTINENTAL
STOCK TRANSFER
&
TRUST COMPANY
|
||
| |
|
|
| By: | ||
|
Xxxxxx Xxxxxx, Chairman |
||
13
EXHIBIT
A
Form
of Public Warrant
EXHIBIT
B
Warrant
Agent Fees
