APEX BIOVENTURES ACQUISITION CORPORATION INSIDER WARRANT PURCHASE AGREEMENT
THIS
INSIDER WARRANT PURCHASE AGREEMENT (this “Agreement”) is made as of _______,
2007 between Apex Bioventures Acquisition Corporation, a Delaware corporation
(the “Company”), and each of the individuals and entities set forth on
Exhibit
A
hereto
and a signatory hereof (each, a “Purchaser” and collectively, the “Purchasers”).
Except as otherwise indicated herein, capitalized terms used herein are defined
in Section 8 hereof.
WHEREAS,
the Purchasers are, or entities affiliated with, officers and/or directors
of
the Company; and
WHEREAS,
in furtherance of the Company’s plan to obtain funding through an initial public
offering (the “Offering”) of its units (the “Units”), each Unit consisting of
one share of common stock (“Common Stock”), par value $0.0001 per share, of the
Company (the “Unit Common Stock”) and one warrant to purchase one share of
Common Stock (each, a “Unit Warrant” and collectively, the “Unit Warrants”), and
to demonstrate their commitment to this plan, the Purchasers desire to make
an
investment in the Company by purchasing 1,800,000 warrants (each, an “Insider
Warrant” and collectively, the “Insider Warrants” ) on the terms and conditions
described herein.
NOW
THEREFORE, the parties to this Agreement hereby agree as follows:
Section
1. Authorization,
Purchase and Sale; Terms of the Insider Warrants.
A. Authorization
of the Insider Warrants. The
Company has authorized, and hereby ratifies such authorization by execution
hereof, the issuance and sale to the Purchasers of an aggregate of 1,800,000
Insider Warrants. Each Insider Warrant shall, upon exercise and payment of
the
exercise price specified therein, entitle the holder to purchase one share
of
the Company’s Common Stock.
B. Purchase
and Sale of the Insider Warrants.
The
Company shall sell to each of the Purchasers, and subject to the terms and
conditions set forth herein, the Purchasers shall severally purchase from the
Company, prior to the effectiveness of the Registration Statement, an aggregate
of 1,800,000 Insider Warrants. Each Purchaser shall purchase that number of
the
Insider Warrants as is set forth opposite his name in the table contained in
Exhibit
A
hereto.
The purchase price of each Insider Warrant shall be $1.00 per warrant (the
“Purchase Price”), which shall be paid in immediately available funds through
wire transfers to the trust account (the “Trust Account”) to be established
pursuant to that certain Investment Management Trust Agreement by and between
the Company and Continental Stock Transfer & Trust Company
(“Continental”). The Purchase Price shall be wired to the Trust Account by the
Purchasers so as to be on deposit in the Trust Account not less than 24 hours
prior to the effectiveness of the Registration Statement. Amounts so received
in
the Trust Account shall be credited against the respective purchase obligations
of the Purchasers as set forth on Exhibit
A
hereto.
C. Terms
of the Insider Warrants.
The
Insider Warrants shall carry rights and terms identical to those possessed
by
the Unit Warrants described in the Registration Statement, subject to the
following exceptions: the Insider Warrants (i) will not be
transferable or salable by the Purchasers until six months after the
consummation of a Business Combination, (ii) will be non-redeemable so
long as the Purchasers hold such warrants following their issuance by the
Company to such Purchasers, and (iii) together with the shares of Common
Stock underlying the Insider Warrants, are and will be entitled to registration
rights under the registration rights agreement (the “Registration Rights
Agreement”) to be signed contemporaneously herewith between the Purchasers
(referred to as the Investors in the Registration Rights Agreement) and the
Company. The transfer restriction set forth in (i) above shall not apply
(a) with respect to a Purchaser that is an entity, to dividend, distribution
or
contribution to any individual or entity controlling, controlled by, or under
common control with such Purchaser, or to any stockholder, member, partner
or
limited partner of such Purchaser, for which no or nominal consideration is
received, and (b), with respect to a Purchaser who is an individual, (i) to
a
member of such Purchaser’s immediate family or to a trust, the beneficiary of
which is such Purchaser or a person related to such Purchaser by blood, marriage
or adoption, or (ii) by virtue of the laws of descent and distribution upon
death of such Purchaser (each, a “Permitted Transferees” and collectively, the
“Permitted Transferees”), provided, that, prior to such transfer, each Permitted
Transferee or the trustee or legal guardian therefor, agrees in writing to
be
bound by the terms of this Agreement. Should any of the Purchasers transfer
or
sell Insider Warrants to persons other than Permitted Transferees after the
Company has completed a Business Combination, then such Insider Warrants shall
on the date of such transfer immediately become redeemable under the same terms
as the Unit Warrants. Further, the Insider Warrants may be exercised on a
cashless basis in accordance with Section 3.3.1 of the Warrant
Agreement. Except as specifically provided in this Agreement, the terms of
the Insider Warrants shall in all other respects be as set forth in the Warrant
Agreement relating to the Unit Warrants by and between the Company and
Continental. In the event of any conflict between this Agreement and the Warrant
Agreement, the terms and provisions of which are incorporated herein by
reference, this Agreement shall control. In
connection with the vote required to consummate a Business Combination, the
Purchaser shall vote any shares of Common Stock acquired by the Purchaser in
connection with the exercise of any of the Insider Warrants purchased hereby
in
accordance with the majority of the shares of Common Stock voted by the
Company's public stockholders, and therefore waives any redemption rights it
might have with respect to such shares of Common Stock. The Purchaser hereby
waives any right to receive distributions with respect to the any shares of
Common Stock acquired by the Purchaser in connection with the exercise of any
of
the Insider Warrants purchased hereby upon the liquidation of the Trust Account,
or in the event the Company fails to consummate a Business Combination by the
Termination Date (as defined in the Company's Certificate of
Incorporation).
Section
2. The
Closing.
The
closing of the purchase and sale of the Insider Warrants to the Purchasers
(the
“Closing”) shall take place prior to the effectiveness of the Registration
Statement. At the Closing, the Company shall deliver warrant certificates
evidencing the Insider Warrants to be purchased by the Purchasers hereunder
to
Continental Stock Transfer & Trust Co., acting as escrow agent, pursuant to
the Securities Escrow Agreement by and among the Company, Continental and the
Purchasers, registered in each Purchaser’s name, upon the payment of the
aggregate purchase price therefor, by wire transfer of immediately available
funds to the Trust Account.
Section
3. Representations
and Warranties of the Company.
As a
material inducement to the Purchasers to enter into this Agreement and purchase
the Insider Warrants, the Company hereby represents and warrants
that:
A. Organization
and Corporate Power.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and is qualified to do business in
California, which is the only jurisdiction in which the failure to so qualify
would reasonably be expected to have a material adverse effect on the financial
condition, operating results or assets of the Company (a “Company Material
Adverse Effect”). The Company possesses all requisite corporate power and
authority necessary to carry out the transactions contemplated by this
Agreement.
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B. Authorization;
No Breach.
(i) The
execution, delivery and performance of this Agreement will have been duly
authorized by the Company as of the Closing. This Agreement constitutes a valid
and binding obligation of the Company, enforceable in accordance with its terms
upon its execution.
(ii) The
execution and delivery by the Company of this Agreement, the sale and issuance
of the Insider Warrants hereunder, the issuance of the Common Stock upon
exercise of the Insider Warrants (except, with respect thereto, any filings
required under Federal or state securities laws or issuance of one or more
legal
opinions in form and content reasonably satisfactory to the Company pertaining
to the availability of one or more exemptions with respect to the issuance
of
the Insider Warrants under applicable securities laws) and the fulfillment
of
and compliance with the respective terms hereof and thereof by the Company,
do
not, and will not as of the Closing, (A) conflict with or result in
a
breach
of the terms, conditions or provisions of, (B) constitute a default under,
(C) result in the creation of any lien, security interest, charge or
encumbrance upon the Company’s capital stock or assets pursuant to,
(D) result in a violation of, or (E) require any authorization,
consent, approval, exemption or other action by or notice or declaration to,
or
filing with, any court or administrative or governmental body or agency pursuant
to the Company’s Certificate of Incorporation, as amended, or Bylaws, or any
law, statute, rule or regulation to which the Company is subject, or any
agreement, order, judgment or decree to which the Company is subject, except
for
any filings required after the date hereof under Federal or state securities
laws or as would not reasonably be expected to result in a Company Material
Adverse Effect.
C. Title
to Securities.
Upon
issuance in accordance with, and payment pursuant to, the terms hereof, the
Insider Warrants to be purchased hereunder and, upon exercise of the Insider
Warrants, payment of the exercise price set forth therein and conformance with
the other provisions relating to the exercise thereto, the Common Stock issuable
upon exercise of such Insider Warrants will be duly and validly issued, fully
paid and nonassessable, and the Purchasers will have or receive good title
to
such securities, free and clear of all liens, claims and encumbrances of any
kind, other than (i) transfer restrictions hereunder and under the other
agreements contemplated hereby, (ii) transfer restrictions under federal
and state securities laws, and (iii) liens, claims or encumbrances imposed
due to the actions of the Purchaser.
D. Disclosure.
(i) The
Company has provided each Purchaser with a copy of the Registration Statement
and each Amendment to the Company’s Registration Statement, or informed each
Purchaser of the filing thereof and instructed or requested the Purchasers
to
review the Registration Statement and each such Amendment on the Commission’s
website. The Company will provide the Purchasers with a copy of any and all
amendments to the Registration Statement filed by the Company with the
Commission prior to the Closing.
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(ii) To
the
best of the Company’s knowledge as of the date hereof, neither this Agreement
nor the Registration Statement, taken as a whole, contains any untrue statement
of a material fact or omits to state a material fact necessary to make the
statements herein or therein not misleading in light of the circumstances under
which such statements were made.
Section
4. Representations,
Warranties and Covenants of Purchasers. As
a
material inducement to the Company to enter into this Agreement and issue and
sell the Insider Warrants to the Purchasers, each Purchaser hereby severally
and
not jointly represents, warrants and covenants to the Company (as to himself,
herself or itself only) that:
A. Capacity
and State Law Compliance.
Such
Purchaser, if an individual, is over the age of 21 years with the legal capacity
to execute and perform the obligations imposed on such Purchaser hereunder.
If
such Purchaser is an entity, (i) it is a corporation, limited liability company,
limited partnership or other legal entity, duly organized, validly existing
and
in good standing under the laws of the jurisdiction of its organization and
is
qualified to do business in every jurisdiction in which the failure to so
qualify would reasonably be expected to have a material adverse effect on the
financial condition, operating results or assets of such Purchaser, and (ii)
the
execution, delivery and performance of this Agreement by such Purchaser will
have been duly authorized by such Purchaser as of Closing. To such Purchaser’s
knowledge, such Purchaser has engaged in the transactions contemplated by this
Agreement within a state in which the offer and sale of the Insider Warrants
is
permitted under applicable securities laws. Such Purchaser understands and
acknowledges that the purchase of Common Stock upon exercise of the Insider
Warrants may require the registration of such Common Stock under Federal and/or
state securities laws or the availability of an exemption from such registration
requirements.
B. Authorization;
No Breach.
(i) The
Purchaser has the full right, power and authority to enter into this Agreement
and this Agreement constitutes a valid and binding obligation of such Purchaser,
enforceable in accordance with its terms.
(ii) The
execution and delivery by such Purchaser of this Agreement, and the fulfillment
of and compliance with the terms hereof, by such Purchaser do not, and shall
not
as of the
Closing,
conflict with or result in a breach of the terms, conditions or provisions
of
any other agreement, instrument, order, judgment or decree to which such
Purchaser is subject.
C. Investment
Representations.
(i) Such
Purchaser is acquiring Insider Warrants and, upon exercise thereof, will acquire
the Common Stock issuable upon such exercise (collectively, the “Securities”),
for his own account, for investment only and not with a view towards, or for
resale in connection with, any public sale or distribution thereof.
(ii) Such
Purchaser is an “accredited investor” as defined in Rule 501(a)(3) of Regulation
D.
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(iii) Such
Purchaser understands that the Securities are being offered and sold to him,
her
or it in reliance on specific exemptions from the registration requirements
of
United States federal and state securities laws and that the Company is relying
in part upon the truth and accuracy of, and such Purchaser’s compliance with,
the representations, warranties and agreements of such Purchaser set forth
herein in order to determine the availability of such exemptions and the
eligibility of such Purchaser to acquire such Securities.
(iv) Such
Purchaser did not decide to enter into this Agreement, as a result of any
general solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act of 1933, as amended (the “Securities Act”), including
the filing of the Registration Statement.
(v) By
virtue
of such Purchaser’s position as an officer and/or director of the Company or by
virtue of such Purchaser’s affiliation with an officer and/or director of the
Company, such Purchaser has access to all materials relating to the business,
finances and operations of the Company and materials relating to the offer
and
sale of the Securities. Such Purchaser has been afforded the opportunity to
ask
questions of the other executive officers and directors of the Company. Such
Purchaser understands that his, her or its investment in the Securities involves
a high degree of risk. Such Purchaser has sought such accounting, legal and
tax
advice as such Purchaser has considered necessary to make an informed investment
decision with respect to his, her or its acquisition of the Securities. Such
Purchaser has received and reviewed a copy of the Registration Statement,
including without limitation, the language therein under the caption “Risk
Factors.”
(vi) Such
Purchaser understands that no United States federal or state agency or any
other
government or governmental agency has passed on, or made any recommendation
or
endorsement of, the Securities or the fairness or suitability of the investment
in the Securities nor have such authorities passed upon or endorsed the merits
of the offering of the Securities.
(vii) Such
Purchaser understands that: (A) the Securities have not been registered
under the Securities Act or any state securities laws, and may not be offered
for sale, sold, assigned or transferred unless (x) subsequently registered
thereunder or (y) sold in reliance on an exemption therefrom; and
(B) except as specifically set forth in the Registration Rights Agreement,
neither the Company nor any other person is under any obligation to register
such securities under the Securities Act or any state securities laws or to
comply with the terms and conditions of any exemption thereunder. In this
regard, such Purchaser represents that he, she or it is familiar with Rule
144
adopted pursuant to the Securities Act, and understands the resale limitations
imposed thereby and by the Securities Act. Such Purchaser is able to bear the
economic risk of his, her or its investment in the Securities for an indefinite
period of time.
(viii) Such
Purchaser is an investor in securities of companies in the development stage
and
acknowledges that he, she or it has knowledge and experience in financial and
business matters, knows of the high degree of risk associated with
investments
generally and particularly investments in the securities of companies in the
development stage such as the Company, is capable of evaluating the merits
and
risks of an investment in the Securities and is able to bear the economic risk
of an investment in the Securities in the amount contemplated hereunder. Such
Purchaser has adequate means of providing for his, her or its current financial
needs and contingencies and will have no current or anticipated future needs
for
liquidity which would be jeopardized by the investment in the Securities. Such
Purchaser can afford a complete loss of his, her or its investment in the
Securities.
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(ix) Without
in any way limiting the representations set forth above, such Purchaser agrees
not to make any disposition of the Securities (or any part thereof) unless
and
until:
(A) There
is
then in effect a registration statement under the Securities Act covering such
proposed disposition and such disposition is made in accordance with such
registration statement; or
(B) (i)
Such
Purchaser shall have notified the Company of the proposed disposition and shall
have furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, and if reasonably requested by the
Company, such Purchaser shall have furnished the Company with an opinion of
counsel, reasonably satisfactory to the Company, that such disposition will
not
require registration of such Securities under the Securities Act.
Notwithstanding the foregoing, such Purchaser also understands and acknowledges
that the transfer or exercise of the Insider Warrants is subject to the specific
conditions to such transfer or exercise as outlined herein, as to which such
Purchaser specifically assents by his, her or its execution hereof.
D. No
Group. By
virtue
of such Purchaser’s purchase of the Insider Warrants under this Agreement, such
participation shall not be construed so as to make such Purchaser part of,
or a
participant in, a “group” as defined in Rule 13d-5 of the Exchange Act with
respect to any securities of the Company.
E. Rescission
Right Waiver and Indemnification.
(i) Such
Purchaser understands and acknowledges that an exemption from the registration
requirements of the Securities Act requires that there be no general
solicitation of purchasers of the Insider Warrants. In this regard, if the
Offering were deemed to be a general solicitation with respect to the Insider
Warrants, the offer and sale of such Insider Warrants might not be exempt from
registration and, if not, each of the Purchasers would have a prima facie claim,
subject to applicable defenses, to rescind his, her or its purchase of the
Insider Warrants. In order to facilitate the completion of the Offering and
in
order to protect the Company, its stockholders and the Trust Account from claims
that may adversely affect the Company or the interests of its stockholders,
such
Purchaser hereby agrees to waive, to the maximum extent permitted by applicable
law, any claims, right to xxx or rights in law or arbitration, as the case
may
be, to seek rescission of his, her or its purchase of the Insider Warrants.
Such
Purchaser acknowledges and agrees that this waiver is being made in order to
induce the Company to sell the Insider Warrants to the Purchasers. Such
Purchaser further agrees that the foregoing waiver of rescission rights shall,
to the extent permitted under applicable law, apply to any and all known or
unknown actions, causes of action, suits, claims, or proceedings (collectively,
“Claims”) and related losses, costs, penalties, fees, liabilities and damages,
whether compensatory, consequential or exemplary, and expenses in connection
therewith (collectively, “Losses and Expenses”), including, without limitation,
reasonable attorneys’ and expert witness fees and disbursements and all other
expenses reasonably incurred in investigating, preparing or defending against
any Claims, whether pending or threatened, in connection with any present or
future actual or asserted right to rescind the purchase of the Insider Warrants
hereunder or relating to the purchase of the Insider Warrants and the
transactions contemplated hereby.
6
(ii) The
Purchaser hereby waives any and all right, title, interest or claim of any
kind
in or to any distributions from the Trust Account with respect to any shares
of
common stock acquired by the Purchaser in connection with the exercise of the
Insider Warrants purchased hereby pursuant to this Agreement ("Claim") and
hereby waives any Claim the undersigned may have in the future as a result
of,
or arising out of, any contracts or agreements with the Company and will not
seek recourse against the Trust Account for any reason
whatsoever.
(iii) Such
Purchaser agrees to severally indemnify and hold harmless the Company and the
Trust Account against any and all Losses and Expenses whatsoever to which the
Company and the Trust Account may become subject as a result of the purchase
of
the Insider Warrants by any one or more Purchasers, including, but not limited
to, any Claim by any Purchaser of the Insider Warrants, but only to the extent
necessary to ensure that such Losses and Expenses do not reduce the amount
in
the Trust Account. Further, such Purchaser agrees to severally indemnify and
hold harmless Lazard Capital Markets LLC against any and all Losses
and Expenses whatsoever to which Lazard Capital Markets LLC may become subject
as a result of the purchase of the Insider Warrants by any one or more
Purchasers, including, but not limited to, any Claim by any Purchaser of the
Insider Warrants, without limitation. To the extent that the foregoing several
and not joint indemnification obligations may be unenforceable for any reason,
such Purchaser agrees to make the maximum contribution permissible by applicable
law to the payment and satisfaction of any Losses and Expenses relating to
Claims that may or will otherwise reduce the amount in the Trust Account.
Notwithstanding anything contained herein or in the Registration Statement
to
the contrary, any Losses and Expenses indemnified or contributed to hereunder
by
such Purchaser will be paid based on the number of Insider Warrants purchased
by
such Purchaser relative to the total number of Insider Warrants purchased by
all
Purchasers hereunder, except to the extent that such Claims are brought by
any
of the Purchasers, in which case the foregoing indemnity and contribution
obligations shall only be that of the Purchaser making the Claim, it being
the
understanding and agreement of the Purchasers that each of them shall be held
harmless by the other as to any Claims, Losses and Expenses.
(iv) Such
Purchaser acknowledges and agrees that the stockholders of the Company,
including those who purchase the Units in the Offering, are and shall be
third-party beneficiaries of the foregoing provisions of Section 4E of this
Agreement.
(v) Such
Purchaser agrees that to the extent any waiver of rights under this
Section 4E is ineffective as a matter of law, such Purchaser has offered
such waiver for the benefit of the Company as an equitable right that shall
survive any statutory disqualification or bar that applies to a legal right.
Such Purchaser further acknowledges the receipt and sufficiency of consideration
received from the Company hereunder in this regard.
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Section
5. Conditions
Precedent to Closing.
A. The
obligation of each Purchaser to purchase and pay for such Insider Warrants
as is
set forth on Exhibit A hereto is subject to the fulfillment, at or before the
Closing, of each of the following conditions:
(i) Representations
and Warranties.
The
representations and warranties of the Company contained in Section 3,
except for those stated to be made as of the date hereof, shall be true and
correct in all material respects at and as of the Closing as though then made,
except to the extent of changes caused by the transactions expressly
contemplated herein or in the prospectus contained in the Registration
Statement.
(ii) Performance.
The
Company shall have performed and complied with all agreements, obligations
and
conditions contained in this Agreement that are required to be performed or
complied with by it on or before the Closing.
B. The
obligations of the Company to each of the Purchasers under this Agreement are
subject to the fulfillment on or before the Closing of each of the following
conditions:
(i) Representations
and Warranties.
The
representations and warranties of each of the Purchasers contained in
Section 4 shall be true at and as of the Closing as though then
made.
(ii) Performance.
Each of
the Purchasers shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement that are required to
be
performed or complied with by them on or before the Closing.
(iii) Corporate
Consents.
The
Company shall have obtained the consent of its Board of Directors authorizing
the execution, delivery and performance of this Agreement and the issuance
and
sale of the Insider Warrants hereunder.
C. This
Agreement evidences the several and not joint agreements between the Company,
on
the one hand, and each of the Purchasers, on the other hand. Accordingly, (i)
each Purchaser may (but shall not be required to) waive any closing condition
with respect to his, her or its obligation (but not the obligation of any other
Purchaser) to close the transactions contemplated hereby; provided, that, a
majority in interest of the Purchasers (based on the relative number of Insider
Warrants to be purchased), may (but shall not be required to) waive any closing
condition with respect to all (but not less than all) of the Purchasers’
obligations to close the transactions contemplated hereby, and (ii) the Company
may (but shall not be required to) waive any closing condition with respect
to
all of the Purchasers or any one or more of them and the waiver of a closing
condition with respect to a particular Purchaser shall not be deemed applicable
to any other Purchaser unless so determined by the Company.
Section
6. Termination. This
Agreement may be terminated by agreement of the Company and at least a
majority-in-interest of the Purchasers at any time prior to the consummation
of
the Closing if the Offering is not closed within the time periods described
in
the Underwriting Agreement after the Registration Statement is declared
effective and this Agreement shall automatically terminate without any further
action by any party and thereafter be null and void upon termination of the
Underwriting Agreement or the Company’s initial public
offering.
8
Section
7. Survival.
All of
the representations, warranties, covenants and agreements contained in Section
4
shall survive the Closing for a period of six (6) months except as
otherwise specifically provided herein.
Section
8. Definitions.
For the
purposes of this Agreement, the following terms have the meanings set forth
below:
“Affiliate”
of any particular Person means any other Person controlling, controlled by
or
under common control with such particular Person, where “control” means the
possession, directly or indirectly, of the power to direct the management and
policies of a Person whether through the ownership of voting securities,
contract or otherwise.
“Business
Combination” means a merger, stock exchange, asset acquisition, stock purchase
or similar business combination of the Company with a target business or
businesses that is its initial business combination and which meets the size,
timing and other criteria outlined in the Registration Statement.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the Company’s Common Stock, par value $0.0001 per
share.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Person”
means any individual, partnership, corporation, limited liability company,
association, joint stock company, trust, joint venture, unincorporated
organization or governmental entity or any department, agency or political
subdivision thereof.
“Registration
Statement” means the Company’s registration statement on Form S-1 (File No.
333-135755), as the same has been and may be amended from time to time hereafter
(the “Registration Statement”) and filed with the Commission.
“Securities
Act” means the Securities Act of 1933, as amended.
Section
9. Miscellaneous.
A. Legends.
(i) The
certificates evidencing the Insider Warrants will include the legend set forth
below:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW, AND MAY NOT BE OFFERED, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE. THESE SECURITIES ARE ALSO SUBJECT TO
INVESTMENT REPRESENTATIONS AND RESTRICTIONS ON TRANSFER OR SALE PURSUANT TO
AN
INSIDER WARRANT PURCHASE AGREEMENT DATED ________, 2007 WHICH RESTRICTS THE
TRANSFER THEREOF AS PROVIDED IN THE PURCHASE
AGREEMENT, A COPY OF WHICH CAN BE OBTAINED FROM THE COMPANY AT ITS EXECUTIVE
OFFICES. THESE
SECURITIES ARE ALSO SUBJECT TO THE TERMS AND PROVISIONS OF A SECURITIES
ESCROW AGREEMENT DATED ________, 2007 WHICH RESTRICTS THE TRANSFER THEREOF
AS
PROVIDED THEREIN, A COPY OF WHICH CAN BE OBTAINED FROM THE COMPANY AT ITS
EXECUTIVE OFFICES.
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(ii) By
accepting the certificates bearing the aforesaid legend, each Purchaser agrees
(on behalf of himself, herself or itself), prior to any permitted transfer
of
the Insider Warrants represented by the certificates and subject to the
restrictions contained herein, to give written notice to the Company expressing
his, her or its desire to effect such transfer and describing briefly the
proposed transfer. Upon receiving such notice, the Company shall present copies
thereof to its counsel and the following provisions shall apply:
(x) subject
to the transfer restrictions contained elsewhere in this Agreement, if, in
the
reasonable opinion of counsel to the Company, the proposed transfer of such
Insider Warrants may be effected without registration under the Securities
Act
and applicable state securities acts, the Company shall promptly thereafter
notify the transferring Purchaser, whereupon the transferring Purchaser shall
be
entitled to transfer such Insider Warrants, all in accordance with the terms
of
the notice delivered by the transferring Purchaser and upon such further terms
and conditions as shall be required to ensure compliance with the Securities
Act
and the applicable state securities acts, and, upon surrender of the certificate
evidencing such Insider Warrants, in exchange therefor, a new certificate not
bearing a legend of the character set forth above if such counsel reasonably
believes that such legend is no longer required under the Securities Act and
the
applicable state securities acts; and
(y) subject
to the transfer restrictions contained elsewhere in this Agreement, if, in
the
reasonable opinion of counsel to the Company, the proposed transfer of such
Insider Warrants may not be effected without registration under the Securities
Act or the applicable state securities acts, a copy of such opinion shall be
promptly delivered to the transferring Purchaser, and such proposed transfer
shall not be made unless such registration is then in effect.
(iii) The
Company may, from time to time, make stop transfer notations in its records
and
deliver stop transfer instructions to its transfer agent to the extent its
counsel considers it necessary to ensure compliance with the Securities Act
and
the applicable state securities acts.
10
B. Successors
and Assigns.
Except
as otherwise expressly provided herein, all covenants and agreements contained
in this Agreement by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and permitted assigns of
the
parties hereto whether so expressed or not. Notwithstanding the foregoing or
anything to the contrary herein, the parties may not assign this
Agreement.
C. Severability.
Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of
this
Agreement is held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
D. Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, any one
of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.
Facsimile signatures shall be deemed originals for all purposes
hereunder.
E. Descriptive
Headings; Interpretation.
The
descriptive headings of this Agreement are inserted for convenience only and
do
not constitute a substantive part of this Agreement. The use of the word
“including” in this Agreement shall be by way of example rather than by
limitation.
F. Governing
Law.
The
general corporation law of the State of Delaware shall govern all issues and
questions concerning the construction, validity, enforcement and interpretation
of this Agreement, without giving effect to any choice of law or conflict of
law
rules or provisions that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
G. Notices.
All
notices, demands or other communications to be given or delivered under or
by
reason of the provisions of this Agreement shall be in writing and shall be
deemed to have been given when delivered personally to the recipient, sent
to
the recipient by reputable overnight courier service (charges prepaid) or mailed
to the recipient by certified or registered mail, return receipt requested
and
postage prepaid. Such notices, demands and other communications shall be
sent:
if
to the
Company, to:
00
Xxxx
Xxxx
Xxxxxxxxxxxx,
Xxxxxxxxxx 00000
Attn:
Chief Executive Officer
with
a
copy (which shall not constitute notice) to:
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.
11
and
if to
any Purchaser:
at
the
address of such Purchaser as set forth in
the
records of the Company.
or
in any
case to such other address or to the attention of such other
person
as
the recipient party has specified by prior written notice to
the
sending party.
H. No
Strict Construction.
The
parties hereto have participated jointly in the negotiation and drafting of
this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties
hereto, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions
of
this Agreement.
{Remainder
of page left intentionally blank. Signature page(s) to
follow}
12
IN
WITNESS WHEREOF, the undersigned have executed this Insider Warrant Purchase
Agreement as of the date first written above.
| COMPANY: | APEX BIOVENTURES ACQUISITION CORPORATION | |
| |
|
|
| By: | ||
|
K.
Xxxxxxx Xxxxxxx, Chief Executive
Officer
|
||
| INITIAL PURCHASERS: |
K. XXXXXXX XXXXXXX |
|
|
XXXX X. XXXXXXXX |
||
|
XXXXX X. XXXXX |
||
|
XXXXXX X. XXXXXX |
||
|
INVIVOS
LIMITED PARTNERS
By: Invivos
Partners, Ltd., its general partner
|
||
| |
|
|
| By: | ||
|
Xxxxxx 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
Purchaser
|
Number
of
Insider
Warrants
|
Aggregate
Purchase
Price
|
|||||
|
Xxxx
X. Xxxxxxxx
000
Xxxx Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
|
75,000
|
$
|
75,000
|
||||
|
Xxxxx
X. Xxxxx
00000
Xxxxxx Xxxx
Xxxxxxx,
XX 00000
|
200,000
|
$
|
200,000
|
||||
|
Xxxxxx
X. Xxxxxx
c/x
Xxxxx Drill Capital
000
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
|
325,000
|
$
|
325,000
|
||||
|
K.
Xxxxxxx Xxxxxxx
00
Xxxx Xxxx
Xxxxxxxxxxxx,
XX 00000
|
335,000 |
$
|
335,000 | ||||
|
Invivos
Limited Partners
0000
Xxxxxx Xxxxx
Xxxxx
Xxxxxxxxx, XX X0X 0X0
|
225,000
|
$
|
000,000
|
||||
|
Xxxxxxxx
Xxxx Partners, Ltd.
000
Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx,
XX 00000
|
325,000
|
$
|
325,000
|
||||
|
Xxxxxxx
X. Xxxxxxx
Department
of Biology, Room 68-30A
Massachusetts
Institute of Technology
Xxxxxxxxx,
XX 00000
|
100,000
|
$
|
100,000
|
||||
|
Xxxxxx
X. Xxx Xxxxxxxx
Xxxxxxxx
Xxxxxx
Xxxx
Xxxxx, XX 00000
|
115,000
|
$
|
115,000
|
||||
|
Xxx
Clinical Laboratories Ltd.
#000-0000
Xxxxxx Xxx
Xxxxxxx,
XX X0X 0X0
|
100,000 |
$
|
100,000 | ||||
| Total | 1,800,000 |
$
|
1,800,000 | ||||
A-1
