THE REGISTERED HOLDER OF THIS PURCHASE OPTION BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES THAT IT WILL NOT SELL,...
THE
REGISTERED HOLDER OF THIS PURCHASE OPTION BY ITS ACCEPTANCE HEREOF, AGREES
THAT
IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION EXCEPT AS HEREIN
PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES THAT IT WILL
NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE OPTION FOR
A
PERIOD OF ONE YEAR FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW) TO ANYONE OTHER
THAN (I) [LAZARD CAPITAL MARKETS LLC] [LADENBURG XXXXXXXX &
CO. INC.] (THE "INITIAL HOLDER") OR AN UNDERWRITER OR A SELECTED DEALER IN
CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICER OR PARTNER OF THE
INITIAL HOLDER OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER;
PROVIDED, HOWEVER, THAT THE REGISTERED HOLDER OF THIS PURCHASE OPTION MAY SELL,
TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE OPTION WITHOUT LIMITATION,
SUBJECT TO COMPLIANCE WITH APPLICABLE SECURITIES LAWS, PRIOR TO ONE YEAR AT
ANY
TIME
AFTER SIX MONTHS FROM THE CONSUMMATION OF A BUSINESS COMBINATION IF THE VOLUME
WEIGHTED AVERAGE PRICE OF THE COMPANY’S COMMON STOCK EQUALS OR EXCEEDS $11.50
PER SHARE FOR ANY 20 TRADING DAYS WITHIN ANY 30 TRADING DAY PERIOD FOLLOWING
THE
CONSUMMATION OF SUCH BUSINESS COMBINATION.
THIS
PURCHASE OPTION IS NOT EXERCISABLE PRIOR TO THE 90TH DAY FOLLOWING THE
CONSUMMATION BY APEX BIOVENTURES ACQUISITION CORPORATION (THE “COMPANY”) OF A
MERGER, CAPITAL STOCK EXCHANGE, ASSET ACQUISITION, STOCK PURCHASE OR OTHER
SIMILAR BUSINESS COMBINATION (“BUSINESS COMBINATION”) ASSUMING SHARES OF COMMON
STOCK ARE COVERED BY AN EFFECTIVE REGISTRATION STATEMENT AND CURRENT AVAILABLE
PROSPECTUS. (AS DESCRIBED MORE FULLY IN THE COMPANY’S REGISTRATION STATEMENT
(DEFINED HEREIN)). THIS PURCHASE OPTION SHALL BE VOID AFTER 5:00 P.M EASTERN
TIME, _____________, 2012.
UNIT
PURCHASE OPTION
FOR
THE
PURCHASE OF
[450,000]
UNITS
OF
1. Purchase
Option.
THIS
CERTIFIES THAT, in consideration of $[100.00] duly paid by or on behalf of
[LAZARD CAPITAL MARKETS LLC] [LADENBURG XXXXXXXX & CO. INC.] (the "Initial
Holder"), as registered owner of this Purchase Option (this “Purchase Option”),
to APEX BIOVENTURES ACQUISITION CORPORATION (“Company”), the Initial
Holder is entitled, at any time or from time to time on and after the
90th day following the consummation of a Business Combination
(“Commencement Date”), and at or before 5:00 p.m., Eastern Time, _____________,
2012 (“Expiration Date”), but not thereafter, to subscribe for, purchase and
receive, in whole or in part, up to [450,000] units (“Units”) of the Company,
each Unit consisting of one share of common stock of the Company, par value
$.0001 per share (“Common Stock”), and one warrant (“Warrant(s)”) expiring four
years from the effective date (“Effective Date”) of the registration statement
(“Registration Statement”) pursuant to which Units are offered for sale to the
public (“Offering”). Each Warrant is the same as the warrants included in the
Units being registered for sale to the public by way of the Registration
Statement (“Public Warrants”). If the Expiration Date is not a Business Day (as
defined below), then this Purchase Option may be exercised on the next
succeeding Business Day in accordance with the terms herein. During the period
ending on the Expiration Date, the Company agrees not to take any action that
would terminate the Purchase Option. This Purchase Option is initially
exercisable at $10.00 per Unit so purchased; provided, however, that upon the
occurrence of any of the events specified in Section 6 hereof, the rights
granted by this Purchase Option, including the exercise price per Unit and
the
number of Units (and shares of Common Stock and Warrants) to be received upon
such exercise, shall be adjusted as therein specified.
The
term
“Exercise Price” shall mean the initial exercise price or the adjusted exercise
price, depending on the context.
The
term
“Holder” shall mean, as of any date, Initial Holder and/or any
transferee who acquires this Purchase Option (in whole or in part) in accordance
with Section 3.1 hereof.
The
term
“Business Day” shall mean any day, except a Saturday, Sunday or legal holiday on
which the banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
2. Exercise.
2.1 Exercise
Form.
In
order to exercise this Purchase Option, the exercise form attached hereto must
be duly executed and completed and delivered to the Company, together with
this
Purchase Option and payment of the Exercise Price for the Units being purchased
(payable in cash or by certified check or official bank check). If the
subscription rights represented hereby shall not be exercised at or before
5:00
p.m., Eastern time, on the Expiration Date, this Purchase Option shall become
null and void, without further force or effect, and all rights represented
hereby shall cease and expire.
2.2 Legend.
Each
certificate for the securities purchased under this Purchase Option shall bear
a
legend as follows unless such securities have been registered under the
Securities Act of 1933, as amended (“Act”):
“The
securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended (“Act”), or applicable state law. The
securities may not be offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act, or pursuant
to an
exemption from registration under the Act and applicable state
law.”
2.3 Cashless
Exercise.
2.3.1 Determination
of
Amount.
In lieu
of the payment of the Exercise Price multiplied by the number of Units for
which
this Purchase Option is exercisable and in lieu of being entitled to receive
Units in the manner required by Section 2.1, the Holder shall have the
right (but not the obligation) to convert any exercisable but unexercised
portion of this Purchase Option into Units (“Conversion
Right”)
as
follows: upon exercise of the Conversion Right, the Company shall deliver
to the
Holder (without payment by the Holder of any of the Exercise Price in cash)
that
number of Units equal to the quotient obtained by dividing (x) the “Value”
(as defined below) of the portion of this Purchase Option being converted
by
(y) the “Current Market Price” (as defined below) of a Unit. The “Value” of
the portion of this Purchase Option being converted shall equal the remainder
derived from subtracting (a) the product of (i) the Exercise Price
multiplied by (ii) the number of Units underlying the portion of this
Purchase Option being converted from (b) the product of (i) Current
Market Price of a Unit multiplied by (ii) the number of Units underlying
the portion of this Purchase Option being converted. The “Current Market Price”
of a Unit at any day shall mean (i) if the Units are 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 Unit for the thirty (30) trading days immediately preceding the date
of determination of the Current Market Price in the principal trading market
for
the Units as reported by the exchange or the quotation system, as the case
may
be; (ii) if Units are not listed on a national securities exchange or
quoted on 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 Unit 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 Units 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.
2.3.2 Mechanics
of Cashless Exercise.
The
cashless exercise right described in this Section 2.3 (the “Cashless
Exercise Right”)
may be
exercised by the Holder on any business day on or after the Commencement
Date
and not later than the Expiration Date by delivering this Purchase Option
with
the duly executed exercise form attached hereto with the cashless exercise
section completed to the Company, exercising the Cashless Exercise Right
and
specifying the total number of Units the Holder will purchase pursuant to
such
Cashless Exercise Right.
2.4 Warrant
Exercise.
Any
Warrants underlying the Units shall be issued pursuant and subject to the terms
and conditions set forth in the Warrant Agreement, entered into by and between
the Company and Continental Stock Transfer & Trust Company, dated as of
_____, 2007.
3. Transfer.
3.1 General
Restrictions.
The
registered Holder of this Purchase Option, by its acceptance hereof, agrees
that
it will not sell, transfer, assign, pledge or hypothecate this Purchase Option
(in whole or in part) or any interest herein for a period of 180
days following the Effective Date to anyone other than (i) the Initial
Holder or an underwriter or a selected dealer in connection with the
Offering, or (ii) a bona fide officer, partner, subsidiary or other affiliate
of the Initial Holder or of any such underwriter or selected dealer
(collectively,
a “Permitted
Transferee”);
provided, however that the registered Holder of this Purchase Option may sell,
transfer, assign, pledge or hypothecate this Purchase Option without limitation,
subject to compliance with applicable securities laws, prior to 180
days following the Effective Date, at any time after six months from the
consummation of a business combination if the volume weighted average price
of
the Company’s common stock equals or exceeds $11.50 per share for any 20 trading
days within any 30 trading day period following the consummation of such
business combination (any such time a “Lock-Up
Release Event”).
On and after the first anniversary of the Effective Date, or during any
Lock-up Release Event, this Purchase Option may be sold, transferred, assigned,
pledged, hypothecated or otherwise disposed of, in whole or in part, subject
to
compliance with, or exemptions from, applicable securities laws. In order to
make any permitted assignment, the Holder must deliver to the Company the
assignment form attached hereto duly executed and completed, together with
the
Purchase Option and payment of all transfer taxes, if any, payable in connection
therewith. The Company shall within five Business Days following receipt thereof
transfer this Purchase Option on the books of the Company and shall execute
and
deliver a new Purchase Option or Purchase Options of like tenor to the
appropriate assignee(s) expressly evidencing the right to purchase the aggregate
number of Units purchasable hereunder or such portion of such number as shall
be
contemplated by any such assignment.
2
3.2 Restrictions
Imposed by the Act.
The
securities evidenced by this Purchase Option shall not be transferred unless
and
until (a) the Company has received a written opinion of counsel for the Holder
that the securities may be transferred pursuant to an exemption from
registration under the Act and applicable state securities laws, the
availability of which is established to the reasonable satisfaction of the
Company (the Company hereby agreeing that the opinion of Xxxxxx Xxxxx
Xxxxxxxx & Xxxxxxx LLP shall be deemed satisfactory evidence of the
availability of an exemption), or (b) a registration statement or a
post-effective amendment to the Registration Statement relating to such
securities has been filed by the Company and declared effective by the
Securities and Exchange Commission (the “Commission”) and a current prospectus
is available, and compliance with applicable state securities laws has been
established.
4. New
Purchase Options to be Issued.
4.1 Partial
Exercise or Transfer.
Subject
to the restrictions in Section 3 hereof, this Purchase Option may be exercised
or assigned in whole or in part. In the event of the exercise or assignment
hereof in part only, upon surrender of this Purchase Option for cancellation,
together with the duly executed exercise or assignment form and funds sufficient
to pay any Exercise Price and/or transfer tax, the Company shall cause to be
delivered to the Holder without charge a new Purchase Option of like tenor
to
this Purchase Option in the name of the Holder evidencing the right of the
Holder to purchase the number of Units purchasable hereunder as to which this
Purchase Option has not been exercised or assigned. In addition, the Company
shall cause to be delivered to any permitted transferee without charge a new
Purchase Option of like tenor to this Purchase Option in the name of such
transferee evidencing the right of such transferee to purchase the number of
Units purchasable hereunder as to which this Purchase Option has been
transferred to such transferee.
4.2 Lost
Certificate.
Upon
receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Purchase Option and of reasonably satisfactory
indemnification or the posting of a bond, the Company shall execute and deliver
a new Purchase Option of like tenor and date. Any such new Purchase Option
executed and delivered as a result of such loss, theft, mutilation or
destruction shall constitute a substitute contractual obligation on the part
of
the Company.
5. Registration
Rights.
5.1 General.
As used
in this Section 5, the term “Registrable Securities” means Purchase Options,
including the Units, Common Stock, Warrants and shares of Common Stock
underlying the Warrants; provided, that, any such securities shall cease to
be
Registrable Securities when: (a) a registration statement with
respect to the sale of such securities shall have become effective under the
Act
and such securities shall have been sold, transferred, disposed of or exchanged
in accordance with such registration statement; (b) such securities shall
have been transferred pursuant to Rule 144 of the Act (but not Rule 144A),
new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent public distribution of them
shall not require registration under the Act; (c) such securities may be
sold under Rule 144 by the Holder without volume limitation restrictions, or
(d)
such securities shall have ceased to be outstanding.
5.2 Demand
Registration.
5.2.1 Grant
of Right.
At any
one time (and not more than one time) during the five year period following
the
Effective Date, the Holders of at least 51% of the Registrable Securities
(“Majority Holders”) may make a written demand for registration under the Act of
all or part of their Registrable Securities (a “Demand Registration”). Any
request for a Demand Registration (a “Demand Request”) shall specify the number
and type of Registrable Securities proposed to be sold and the intended
method(s) of distribution thereof. The Company will notify all Holders of
Registrable Securities of the demand, and any Holder of Registrable Securities
who wishes to include all or a portion of such Holder’s Registrable Securities
in the Demand Registration shall so notify the Company within fifteen (15)
days
following delivery of the notice from the Company (such Holders who timely
deliver notice together with the Majority Holders, the “Demanding
Holders”). The Company will then use its reasonable best efforts to (a)
prepare and file within 60 days a registration statement or a post-effective
amendment to the Registration Statement covering the resale of the Registrable
Securities which the Demanding Holders have requested to be registered, and
(b)
to have such registration statement declared effective as soon as possible
thereafter, subject to Section 5.2.4.
3
5.2.2 Terms.
The Company shall bear all fees and expenses attendant to registering the
Registrable Securities, including the fees and expenses of one legal counsel
selected by the Majority Holders to represent them in connection with the sale
of the Registrable Securities, except that the Company shall not be required
to
pay any underwriting commissions (which commissions, if any, shall be borne
by
the Demanding Holders participating in the registration). The Company agrees
to
use its reasonable best efforts to qualify or register the Registrable
Securities in such States as are reasonably requested by the Majority Holder(s);
provided, however, that in no event shall the Company be required to register
the Registrable Securities in a State in which such registration would cause
(a)
the Company to be obligated to qualify to do business in such State, or would
subject the Company to taxation as a foreign corporation doing business in
such
jurisdiction or (b) the principal stockholders of the Company to be obligated
to
escrow their shares of capital stock of the Company. The Company shall cause
any
registration statement or post-effective amendment filed pursuant to the demand
rights granted under Section 5.2.1 to remain effective until all Registrable
Securities covered thereby have been sold or, if longer, for a period of nine
months from the date that the Holders of the Registrable Securities are first
given the opportunity to sell their Registrable Securities thereunder plus
any
period during which disposition of securities thereunder is interfered with
by
any stop order or injunction of the Commission or any governmental agency or
court.
5.2.3 Effective
Registration. A registration will not count as a Demand Registration until
the registration statement filed with the Commission with respect to such Demand
Registration has been declared effective and the Company has complied with
all
of its obligations under this Agreement with respect thereto; provided, however,
that if, after such registration statement has been declared effective, the
offering of Registrable Securities pursuant to a Demand Registration is
interfered with by any stop order or injunction of the Commission or any other
governmental agency or court, the registration statement with respect to such
Demand Registration will be deemed not to have been declared effective, unless
and until, (i) such stop order or injunction is removed, rescinded or otherwise
terminated, and (ii) a majority-in-interest of the Demanding Holders thereafter
elect to continue the offering.
5.2.4 Underwritten
Offerings.
If a
majority-in-interest (based on the number of Registrable Securities being
registered) of the Demanding Holders so elect and such holders so advise the
Company in writing, the offering of such Registrable Securities pursuant to
such
Demand Registration shall be in the form of an underwritten offering. In such
event, the right of any Holder of Registrable Securities to include its
Registrable Securities in such registration shall be conditioned upon such
Holder’s participation in such underwriting and the inclusion of such Holder’s
Registrable Securities in the underwriting to the extent provided herein.
All Demanding Holders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting by the
majority-in-interest of the Demanding Holders. If the managing underwriter
or
underwriters for a Demand Registration that is to be an underwritten offering
advises the Company and the Demanding Holders in writing that the dollar amount
or number of Registrable Securities which the Demanding Holders desire to sell,
taken together with all other shares of Common Stock or other securities which
the Company desires to sell and the shares of Common Stock or other securities,
if any, as to which registration has been requested pursuant to written
contractual piggy-back registration rights held by other securityholders of
the
Company who desire to sell, exceeds the maximum dollar amount or maximum number
of securities that can be sold in such offering without adversely affecting
the
proposed offering price, the timing, the distribution method, or the probability
of success of such offering (such maximum dollar amount or maximum number of
securities, as applicable, the “Maximum Registration Amount”), then the Company
shall include in such registration: (a) first, the Registrable Securities
as to which Demand Registration has been requested by the Demanding Holders
(pro
rata
in
accordance with the number of shares of Registrable Securities which such
Demanding Holders have requested be included in such registration, regardless
of
the number of Registrable Securities held by each Demanding Holder) that can
be
sold without exceeding the Maximum Registration Amount; (b) second, the shares
of Common Stock or other securities that the Company desires to sell that can
be
sold without exceeding the Maximum Registration Amount; (c) third, to the extent
that the Maximum Registration Amount has not been reached under the foregoing
clauses (a) and (b), the shares of Common Stock or other securities for the
account of other persons that the Company is obligated to register pursuant
to
written contractual arrangements with such persons and that can be sold without
exceeding the Maximum Registration Amount; and (d) fourth, to the extent that
the Maximum Registration Amount has not been reached under the foregoing clauses
(a), (b), and (c), the shares of Common Stock or other securities that other
securityholders desire to sell that can be sold without exceeding the Maximum
Registration Amount.
5.2.5
Withdrawal. If a majority-in-interest of the Demanding Holders disapprove
of the terms of any underwriting or are not entitled to include all of their
Registrable Securities in any offering, such majority-in-interest of the
Demanding Holders may elect to withdraw from such offering by giving written
notice to the Company and the underwriter or underwriters of their request
to
withdraw prior to the effectiveness of the registration statement filed with
the
Commission with respect to such Demand Registration. If the majority-in-interest
of the Demanding Holders withdraws from a proposed offering relating to a
Demand
Registration, then such registration shall not count as a Demand Registration
provided for in Section 5.2.
4
5.2.6 Permitted
Delays. The Company shall be entitled to postpone, for up to 60 days from
the date of receipt of a Demand Request, the filing of any registration
statement under this Section 5.2, if (a) at any time prior to the filing of
such
registration statement the Company’s Board of Directors determines, in its good
faith business judgment, that such registration and offering would materially
and adversely affect any financing, acquisition, corporate reorganization,
or
other material transaction involving the Company, and (b) the Company delivers
to the Demanding Holders written notice thereof within five (5) business days
from the date of receipt of a Demand Request; provided, that the Company may
not
exercise this postponement right more than once during any twelve-month
period.
5.3 “Piggy-Back”
Registration.
5.3.1 Grant
of Right.
If at
any time during the first seven years following the Effective Date the Company
proposes to file a Registration Statement under the Act with respect to an
offering of equity securities, or securities or other obligations exercisable
or
exchangeable for, or convertible into, equity securities, by the Company for
its
own account or for securityholders of the Company for their accounts (or by
the
Company and by securityholders of the Company including, without limitation,
pursuant to Section 5.2.1), other than a registration statement (a) filed
in connection with any employee stock option or other benefit plan, (b) for
an
exchange offer or offering of securities solely to the Company’s existing
securityholders, (c) for an offering of debt that is convertible into equity
securities of the Company, or (d) for a dividend reinvestment plan, then
the Company shall (i) give written notice of such proposed filing to the holders
of Registrable Securities as soon as practicable but in no event less than
ten
(10) days before the anticipated filing date, which notice shall describe the
amount and type of securities to be included in such offering, the intended
method(s) of distribution, and the name of the proposed managing underwriter
or
underwriters, if any, of the offering, and (ii) offer to the holders of
Registrable Securities in such notice the opportunity to register the sale
of
such number of shares of Registrable Securities as such holders may request
in
writing within five (5) days following receipt of such notice (a “Piggy-Back
Registration”). The Company shall cause such Registrable Securities to be
included in such registration and shall use its reasonable best efforts to
cause
the managing underwriter or underwriters of a proposed underwritten offering
to
permit the Registrable Securities requested to be included in a Piggy-Back
Registration to be included on the same terms and conditions as any similar
securities of the Company and to permit the sale or other disposition of such
Registrable Securities in accordance with the intended method(s) of distribution
thereof. All holders of Registrable Securities proposing to distribute
their securities through a Piggy-Back Registration that involves an underwriter
or underwriters shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such Piggy-Back
Registration.
5.3.2 Terms.
The
Company shall bear all fees and expenses attendant to registering the
Registrable Securities, including the expenses of any legal counsel selected
by
the Holders to represent them in connection with the sale of the Registrable
Securities, but the Holders shall pay any and all underwriting commissions.
The
Company agrees to use its reasonable best efforts to qualify or register the
Registrable Securities in such states as are reasonably requested by the
Majority Holder(s); provided, however, that in no event shall the Company be
required to register the Registrable Securities in a state in which such
registration would cause (a) the Company to be obligated to qualify to do
business in such state, or would subject the Company to taxation as a foreign
corporation doing business in such jurisdiction or (b) the principal
shareholders of the Company to be obligated to escrow their shares of share
capital of the Company. The Company shall cause any registration statement
or
post-effective amendment filed pursuant to the demand rights granted under
Section 5.2 to remain effective for a period of nine consecutive months from
the
effective date of such registration statement or post-effective amendment.
5
5.3.3 Underwritten
Offerings.
If the
managing underwriter or underwriters for a Piggy-Back Registration that is
to be
an underwritten offering advises the Company and the Holders of Registrable
Securities in writing that the dollar amount or number of shares of Common
Stock
or other securities which the Company desires to sell, taken together with
shares of Common Stock or other securities, if any, as to which registration
has
been demanded pursuant to written contractual arrangements with persons other
than the Holders of Registrable Securities hereunder, the Registrable Securities
as to which registration has been requested under this Section 5.3, and the
shares of Common Stock or other securities, if any, as to which registration
has
been requested pursuant to the written contractual piggy-back registration
rights of other securityholders of the Company, exceeds the Maximum Registration
Amount, then the Company shall include in any such registration:
(a) If
the
registration is undertaken for the Company’s account: (i) first, the shares of
Common Stock or other securities that the Company desires to sell that can
be
sold without exceeding the Maximum Registration Amount; (ii) second, to the
extent that the Maximum Registration Amount has not been reached under the
foregoing clause (i), the Registrable Securities as to which registration has
been requested under Section 5.3 above and, to the extent that any other
security holders have written contractual piggy-back registration rights which
are on parity with the rights of Holders of Registrable Securities hereunder,
shares of Common Stock and other securities, if any, as to which registration
has been requested pursuant to such other piggy-back registration rights by
such
other security holders (pro rata in accordance with the number of shares of
Common Stock and other securities which each such person has actually requested
to be included in such registration, regardless of the number of shares of
Common Stock and other securities with respect to which such persons have the
right to request such inclusion) that can be sold without exceeding the Maximum
Registration Amount; and (iii) third, to the extent that the Maximum
Registration Amount has not been reached under the foregoing clauses (i) and
(ii), shares of Common Stock and other securities, if any, as to which
registration has been requested pursuant to written contractual piggy-back
registration rights which are subordinate to the rights of Holders of
Registrable Securities hereunder (pro rata in accordance with the number of
shares of Common Stock and other securities which each such person has actually
requested to be included in such registration, regardless of the number of
shares of Common Stock and other securities with respect to which such persons
have the right to request such inclusion) that can be sold without exceeding
the
Maximum Registration Amount.
(b)
If the
registration is a “demand” registration undertaken at the demand of persons
other than the Holders of Registrable Securities pursuant to written contractual
arrangements with such persons, (i) first, the shares of Common Stock and other
securities for the account of the demanding persons that can be sold without
exceeding the Maximum Registration Amount; (ii) second, to the extent that
the
Maximum Registration Amount has not been reached under the foregoing clause
(i),
the Registrable Securities as to which registration has been requested under
Section 5.3 above and, to the extent that any other security holders have
written contractual piggy-back registration rights which are on parity with
the
rights of Holders of Registrable Securities hereunder, shares of Common Stock
and other securities, if any, as to which registration has been requested
pursuant to such other piggy-back registration rights by such other security
holders (pro rata in accordance with the number of shares of Common Stock and
other securities which each such person has actually requested to be included
in
such registration, regardless of the number of shares of Common Stock and other
securities with respect to which such persons have the right to request such
inclusion) that can be sold without exceeding the Maximum Registration Amount;
(iii) third, to the extent that the Maximum Registration Amount has not been
reached under the foregoing clauses (i) and (ii), the shares of Common Stock
or
other securities that the Company desires to sell that can be sold without
exceeding the Maximum Registration Amount; and (iii) fourth, to the extent
that
the Maximum Registration Amount has not been reached under the foregoing clauses
(i), (ii) and (iii), shares of Common Stock and other securities, if any, as
to
which registration has been requested pursuant to written contractual piggy-back
registration rights which are subordinate to the rights of Holders of
Registrable Securities hereunder (pro
rata
in
accordance with the number of shares of Common Stock and other securities which
each such person has actually requested to be included in such registration,
regardless of the number of shares of Common Stock and other securities with
respect to which such persons have the right to request such inclusion) that
can
be sold without exceeding the Maximum Registration Amount.
6
5.3.4 Maintenance
of Priority. So long as there are Registrable Securities hereunder, the
Company shall not grant to any person piggy-back rights superior to or on parity
with the rights of the Holders of Registrable Securities hereunder; provided,
however, that the piggy-back rights granted pursuant to that certain
Registration Rights Agreement, dated ________, 2007, between the Company and
the
“Investors” thereunder, substantially in the form filed as Exhibit 10.9 to
the Registration Statement, may be on parity with (but not superior to) the
piggy-back rights granted to the Holders of Registrable Securities
hereunder.
5.3.5 Withdrawal.
Any
Holder of Registrable Securities may elect to withdraw such Xxxxxx’s request for
inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw at least five Business
Days prior to the effectiveness of the Registration Statement. The Company
may also elect to withdraw a registration statement at any time prior to the
effectiveness of the Registration Statement. Notwithstanding any such
withdrawal, the Company shall pay all expenses incurred in connection with
the
withdrawn registration statement in accordance with Section 5.3.2
above.
5.4 Pre-Commencement
Date Registration.
The
Company agrees that prior to the Commencement Date, it shall file with the
Commission a post-effective amendment to the Registration Statement, or a new
registration statement, for the registration, under the Act of (a) the Common
Stock issuable upon exercise of this Purchase Option, and (b) the Common Stock
issuable upon exercise of the Warrants (all of such shares of Common Stock,
the
“Underlying Common Stock”), and it shall take such action as is necessary to
qualify for sale, in those states in which the Units were initially offered
by
the Company, the Underlying Common Stock. In either case, the Company will
use
its reasonable best efforts to cause the same to become effective on or prior
to
the Commencement Date and to maintain the effectiveness of such registration
statement and ensure that a current prospectus is available for delivery until
the expiration of this Purchase Option and the Warrants in accordance with
the
provisions hereof and thereof. In addition, the Company agrees to use its
reasonable best efforts to register such securities under the blue sky laws
of
the states of residence of exercising 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 Holder hereof or a holder of a Warrant be entitled to receive
a
net-cash settlement, shares of Common Stock or other consideration in lieu
of
physical settlement in shares of Common Stock (subject to Section 6), regardless
of whether the Company complies with this Section 5.4. The provisions of this
Section 5.4 may not be modified, amended or deleted without the prior
written consent of the Initial Holder.
5.5 General
Terms.
5.5.1 Indemnification.
The
Company shall indemnify the holder(s) of the Registrable Securities to be sold
pursuant to any registration statement hereunder and each person, if any, who
controls any such holder within the meaning of Section 15 of the Act or Section
20(a) of the Securities Exchange Act of 1934, as amended (“Exchange Act”),
against all loss, claim, damage, expense or liability (including all reasonable
attorneys’ fees and other expenses reasonably incurred in investigating,
preparing or defending against litigation, commenced or threatened, or any
claim
whatsoever whether arising out of any action between the underwriter and the
Company or between the underwriter and any third party or otherwise) to which
any of them may become subject under the Act, the Exchange Act or otherwise,
arising from such registration statement but only to the same extent and with
the same effect as the provisions pursuant to which the Company has agreed
to
indemnify the Initial Holder contained in Section 5 of the
Underwriting Agreement among the Company, the Initial Holder and
__________ dated the Effective Date. The Holder(s) of the Registrable
Securities to be sold pursuant to such registration statement, and their
successors and assigns, shall severally, and not jointly, indemnify the Company,
its officers and directors and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, against all loss, claim, damage, expense or liability (including all
reasonable attorneys’ fees and other expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Act, the Exchange Act or otherwise, arising
from information furnished by or on behalf of such Holders, or their successors
or assigns, in writing, for specific inclusion in such registration statement
to
the same extent and with the same effect as the provisions contained in Section
5 of the Underwriting Agreement pursuant to which the underwriters have agreed
to indemnify the Company.
7
5.5.2 Exercise
of Purchase Options.
Nothing
contained in this Purchase Option shall be construed as requiring the Holder(s)
to exercise this Purchase Option or Warrants underlying this Purchase Option
prior to or after the initial filing of any registration statement or the
effectiveness thereof.
5.5.3 Documents
Delivered to Holders.
The
Company shall furnish to the Initial Holder, as representative of the Holders
participating in any of the foregoing offerings, a signed copy, addressed to
the
participating Holders, of (i) an opinion of counsel to the Company, dated the
effective date of such registration statement (and, if such registration
includes an underwritten public offering, an opinion dated the date of the
closing under any underwriting agreement related thereto), and (ii) a “cold
comfort” letter dated the effective date of such registration statement (and, if
such registration includes an underwritten public offering, a letter dated
the
date of the closing under the underwriting agreement) signed by the independent
public accountants who have issued a report on the Company’s financial
statements included in such registration statement, in each case covering
substantially the same matters with respect to such registration statement
(and
the prospectus included therein) and, in the case of such accountants’ letter,
with respect to events subsequent to the date of such financial statements,
as
are customarily covered in opinions of issuer’s counsel and in accountants’
letters delivered to underwriters in underwritten public offerings of
securities. The Company shall also deliver promptly to the Initial Holder,
as
representative of the Holders participating in the offering, the correspondence
and memoranda described below and copies of all correspondence between the
Commission, on the one hand, and the Company, its counsel and/or auditors,
on
the other hand, and all memoranda relating to discussions with the Commission
or
its staff with respect to the registration statement and permit the Initial
Holder, as representative of the Holders, to do such investigation, upon
reasonable advance notice, with respect to information contained in or omitted
from the registration statement as it deems reasonably necessary to comply
with
applicable securities laws or rules of the National Association of Securities
Dealers, Inc. (“NASD”). Such investigation shall include access to books,
records and properties and opportunities to discuss the business of the Company
with its officers and independent auditors, all to such reasonable extent and
at
such reasonable times and as often as the Initial Holder, as representative
of
the Holders, shall reasonably request. The Company shall not be required to
disclose any confidential information or other records to the Initial
Holder, as representative of the Holders, or to any other person, until and
unless such persons shall have entered into reasonable confidentiality
agreements (in form and substance reasonably satisfactory to the Company),
with
the Company with respect thereto.
5.5.4 Underwriting
Agreement.
The
Company shall enter into an underwriting agreement with the managing
underwriter(s), if any, selected by any Holders pursuant to Section 5.2.4 or
Section 5.3.3, which managing underwriter shall be reasonably acceptable to
the
Company. Such agreement shall be reasonably satisfactory in form and substance
to the Company, each Holder and such managing underwriters, and shall contain
such representations, warranties and covenants by the Company and such other
terms as are customarily contained in agreements of that type used by the
managing underwriter. The Holders shall be parties to any underwriting agreement
relating to an underwritten sale of their Registrable Securities and shall
agree
to such covenants and indemnification and contribution obligations of selling
stockholders as are customarily contained in agreements of that type used by
the
managing underwriter. Further, such Holders shall execute appropriate custody
agreements and otherwise cooperate fully in the preparation of the registration
statement and other documents relating to any offering in which they include
Registrable Securities pursuant to this Section 5. Each Holder shall also
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be reasonably required to effect the registration of the Registrable
Securities.
8
5.5.5 Supplemental
Prospectus.
The
Holder agrees, that upon receipt of any notice from the Company of the happening
of any event as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact
or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing, such Holder will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Xxxxxx’s receipt of the copies of a supplemental or
amended prospectus, and, if so desired by the Company, such Holder shall deliver
to the Company (at the expense of the Company) or destroy (and deliver to the
Company a certificate of such destruction) all copies, other than permanent
file
copies then in such Holder’s possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such
notice.
6. Adjustments.
6.1 Adjustments
to Exercise Price and Number of Securities.
The
Exercise Price and the number of Units underlying the Purchase Option shall
be
subject to adjustment from time to time as hereinafter set forth:
6.1.1 Stock
Dividends - Split-Ups.
If
after the date hereof, and subject to the provisions of Section 6.4 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 thereof, the number of shares
of Common Stock underlying each of the Units purchasable hereunder shall be
increased in proportion to such increase in outstanding shares. In such case,
the number of shares of Common Stock, and the exercise price applicable thereto,
underlying the Warrants underlying each of the Units purchasable hereunder
shall
be adjusted in accordance with the terms of the Warrants. For example, if the
Company declares a two-for-one stock dividend and at the time of such dividend
this Purchase Option is for the purchase of one Unit at $10.00 per whole Unit
(each Warrant underlying the Units is exercisable for $6.00 per share), upon
effectiveness of the dividend, this Purchase Option will be adjusted to allow
for the purchase of one Unit at $10.00 per Unit, each Unit entitling the Holder
to receive two shares of Common Stock and two Warrants (each Warrant exercisable
for $3.00 per share).
6.1.2 Aggregation
of Shares.
If
after the date hereof, and subject to the provisions of Section 6.3, the number
of outstanding shares of Common Stock is decreased by a consolidation,
combination or reclassification of shares of Common Stock or other similar
event, then, on the effective date thereof, the number of shares of Common
Stock
underlying each of the Units purchasable hereunder shall be decreased in
proportion to such decrease in outstanding shares. In such case, the number
of
shares of Common Stock, and the exercise price applicable thereto, underlying
the Warrants underlying each of the Units purchasable hereunder shall be
adjusted in accordance with the terms of the Warrants.
6.1.3 Extraordinary
Dividends.
If the
Company, at any time while this Purchase Option is outstanding and unexpired,
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 6.1.1, (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 (i) the Exercise Price shall be decreased, effective
immediately after the effective date of such Extraordinary Dividend, by the
amount of cash 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 and (ii) the Warrants
issuable upon exercise of this Purchase Option shall be adjusted in the same
manner as the Public Warrants pursuant to the Warrant Agreement, dated _______,
between the Company and the “Warrant Agent” thereunder.
9
6.1.4 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 Section 6.1.1, 6.1.2 or 6.1.3 hereof or
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 property of the Company
as an
entirety or substantially as an entirety in connection with which the Company
is
dissolved, the Holder of this Purchase Option shall have the right thereafter
(until the expiration of the right of exercise of this Purchase Option) to
receive upon the exercise hereof, for the same aggregate Exercise Price payable
hereunder immediately prior to such event, 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, by a holder of the number of shares of
Common Stock of the Company obtainable upon exercise of this Purchase Option
and
the underlying Warrants immediately prior to such event; and if any
reclassification also results in a change in shares of Common Stock covered
by
Section 6.1.1 or 6.1.2, then such adjustment shall be made pursuant to
Sections 6.1.1, 6.1.2 and this Section 6.1.4. The provisions of this Section
6.1.4 shall similarly apply to successive reclassifications, reorganizations,
mergers or consolidations, sales or other transfers.
6.1.5 Changes
in Form of Purchase Option.
This
form of Purchase Option need not be changed because of any change pursuant
to
this Section, and Purchase Options issued after such change may state the same
Exercise Price and the same number of Units as are stated in the Purchase
Options initially issued pursuant to this Agreement. The acceptance by any
Holder of the issuance of new Purchase Options reflecting a required or
permissive change shall not be deemed to waive any rights to an adjustment
occurring after the Commencement Date or the computation thereof.
6.1.6
Adjustments
of Warrants.
To the
extent the price of the Warrants are lowered pursuant to Section 3.1 of the
Warrant Agreement, dated _____________, 2007, between the
Company and Continental Stock Transfer & Trust Company (the "Warrant
Agreement"), the price of the Warrants underlying the Purchase Option shall
be
reduced on identical percentage terms. To the extent the duration of the
Warrants is extended pursuant to Section 3.2 of the Warrant Agreement, the
duration of the Warrants underlying the Purchase Option shall be extended
on
identical terms.
6.2 Substitute
Purchase Option.
In case
of any consolidation of the Company with, or merger of the Company with, or
merger of the Company into, another corporation (other than a consolidation
or
merger which does not result in any reclassification or change of the
outstanding Common Stock), the corporation formed by such consolidation or
merger shall execute and deliver to the Holder a supplemental Purchase Option
providing that the holder of each Purchase Option then outstanding or to be
outstanding shall have the right thereafter (until the stated expiration of
such
Purchase Option) to receive, upon exercise of such Purchase Option, the kind
and
amount of shares of stock and other securities and property receivable upon
such
consolidation or merger, by a holder of the number of shares of Common Stock
of
the Company for which such Purchase Option might have been exercised immediately
prior to such consolidation, merger, sale or transfer. Such supplemental
Purchase Option shall provide for adjustments which shall be identical to the
adjustments provided in Section 6. The above provision of this Section shall
similarly apply to successive consolidations or mergers.
6.3 Elimination
of Fractional Interests.
The
Company shall not be required to issue certificates representing fractions
of
shares of Common Stock or Warrants upon the exercise of this Purchase Option,
nor shall it be required to issue scrip or pay cash in lieu of any fractional
interests, it being the intent of the parties that all fractional interests
shall be eliminated by rounding any fraction up to the nearest whole number
of
Warrants, shares of Common Stock or other securities, properties or
rights.
6.4 Limitations
on Monetary Damages.
In
no
event shall the registered holder of this Purchase Option be entitled to receive
any monetary damages if the securities underlying this Purchase Option have
not
been registered by the Company pursuant to an effective registration statement
or a current prospectus is not available, provided the Company has fulfilled
its
obligation to use reasonable best efforts to effect such registration and to
make such prospectus available.
10
7. Reservation
and Listing.
The
Company shall at all times reserve and keep available out of its authorized
shares of Common Stock, solely for the purpose of issuance upon exercise of
this
Purchase Option or the Warrants underlying this Purchase Option, such number
of
shares of Common Stock or other securities, properties or rights as shall be
issuable upon the exercise thereof. The Company covenants and agrees that,
upon
exercise of this Purchase Option and payment of the Exercise Price therefor,
all
shares of Common Stock and other securities issuable upon such exercise shall
be
duly and validly issued, fully paid and non-assessable. The Company further
covenants and agrees that upon exercise of the Warrants underlying this Purchase
Option and payment of the Warrant exercise price therefor, all shares of Common
Stock and other securities issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable. As long as this Purchase Option shall
be
outstanding, the Company shall use its reasonable best efforts to cause all
(a)
Units and shares of Common Stock issuable upon exercise of this Purchase Option,
(b) Warrants issuable upon exercise of this Purchase Option, and (c) shares
of
Common Stock issuable upon exercise of the Warrants included in the Units
issuable upon exercise of this Purchase Option to be listed (subject to official
notice of issuance) on all securities exchanges (or, if applicable on the Nasdaq
National Market, SmallCap Market, NASD OTC Bulletin Board or any successor
trading market) on which the Units, the Common Stock or the Public Warrants
issued to the public in connection herewith may then be listed and/or
quoted.
8. Certain
Notice Requirements.
8.1 Holder’s
Right to Receive Notice.
Nothing
herein shall be construed as conferring upon the Holder the right to vote or
consent as a stockholder for the election of directors or any other matter,
or
as having any rights whatsoever as a stockholder of the Company. If, however,
at
any time prior to the expiration of this Purchase Option and its exercise,
any
of the events described in Section 8.2 shall occur, then, in one or more of
said
events, the Company shall give written notice of such event at least ten days
prior to the date fixed as a record date or the date of closing the transfer
books for the determination of the stockholders entitled to such dividend,
distribution, conversion or exchange of securities or subscription rights,
or
entitled to vote on such proposed dissolution, liquidation, winding up or sale.
Such notice shall specify such record date or the date of the closing of the
transfer books, as the case may be. Notwithstanding the foregoing, the Company
shall deliver to each holder a copy of each notice given to the other
stockholders of the Company at the same time and in the same manner that such
notice is given to the stockholders.
8.2 Events
Requiring Notice.
The
Company shall be required to give the notice described in Section 8.1 above
if:
(a) the Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities convertible
into
or exchangeable for shares of capital stock of the Company, or any option,
right
or warrant to subscribe therefor, or (b)
if
the Company shall take a record of the holders of its Common Stock for the
purpose of entitling them to receive a dividend or distribution payable
otherwise than in cash, or a cash dividend or distribution payable otherwise
than out of retained earnings, as indicated by the accounting treatment of
such
dividend or distribution on the books of the Company, or (c), a
dissolution, liquidation or winding up of the Company (other than in connection
with a consolidation or merger) or a sale of all or substantially all of its
property, assets and business shall be proposed.
8.3 Notice
of Change in Exercise Price.
The
Company shall, promptly after an event requiring a change in the Exercise Price
pursuant to Section 6 hereof, send notice to the Holders of such event and
change ("Price Notice"). The Price Notice shall describe the event causing
the
change and the method of calculating same and shall be certified as being true
and accurate by the Company's President and Chief Financial
Officer.
11
8.4 Transmittal
of Notices.
All
notices, requests, consents and other communications under this Purchase Option
shall be in writing and shall be deemed to have been duly made when hand
delivered, or mailed by express mail or private courier service: (a) if to
the
registered Holder of the Purchase Option, to the address of such Holder as
shown
on the books of the Company, or (b) if to the Company, to the following address
or to such other address as the Company may designate by notice to the
Holders:
00
Xxxx
Xxxx
Hillsborough,
California 94010
Attention:
Chief Executive Officer
9. Redemption.
9.1 Redemption.
Subject
to Section 9.4 hereof and the penultimate sentence of this Section 9.1, not
less than all of the outstanding Purchase Options may be redeemed, at the option
of the Company, at any time after the Commencement Date and prior to the
Expiration Date, at the Company’s corporate offices, upon the notice referred to
in Section 9.2, at the Redemption Price (as defined below), 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. The provisions of this Section 9.1 may
not be modified, amended or deleted without the prior written consent of the
Initial Holder. As used herein, the term “Redemption Price” means, (a) with
respect to all then outstanding Purchase Options in the aggregate, the price
determined by multiplying $100 by a fraction, the numerator of which is the
total number of Purchase Options (after giving effect to any adjustments
effected pursuant to Section 6 hereof and after deducting for any Purchase
Options previously exercised and no longer outstanding), and the denominator
of
which is the total number of Purchase Options (after giving effect to any
adjustments effected pursuant to Section 6 hereof, but without deducting for
any
Purchase Options previously exercised and no longer outstanding then
outstanding), and (b) with respect to each then outstanding Purchase Option,
means the price determined by dividing the price determined pursuant to
subclause (a) above, by the number of then outstanding Purchase Options (after
giving effect to any adjustments effected pursuant to Section 6 hereof and
after
deducting for any Purchase Options previously exercised and no longer
outstanding). For the avoidance of doubt, assuming that no adjustment has been
made pursuant to Section 6 and that no Purchase Options have been exercised,
the
initial aggregate Redemption Price for all Purchase Options is $100, and the
per
Purchase Option Redemption Price
is
approximately $0.0002222.
9.2 Date
Fixed for, and Notice of, Redemption.
In the
event the Company shall elect to redeem all of the Purchase Options, 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 Purchase Options
to be redeemed at their last addresses as they shall appear in the Company’s
records. 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.
9.3 Exercise
After Notice of Redemption.
Purchase Options may be exercised in accordance with Section 2 hereof at
any time after notice of redemption shall have been given by the Company
pursuant to Section 9.2 hereof and prior to the time and date fixed for
redemption. On and after the redemption date, the record Holder of this Purchase
Option shall have no further rights except to receive, upon surrender hereof,
the applicable Redemption Price.
12
9.4 No
Redemption Without Effective Registration.
Notwithstanding anything contained herein to the contrary, in no event shall
the
Company call the Purchase Options for redemption unless a registration statement
covering the securities underlying this Purchase Option has been declared
effective by the SEC and a current prospectus is available for
delivery.
10. Miscellaneous.
10.1 Amendments.
The
Company and the Initial Holder may from time to time supplement or
amend this Purchase Option without the approval of any of the Holders in order
to cure any ambiguity, to correct or supplement any provision contained herein
that may be defective or inconsistent with any other provisions herein, or
to
make any other provisions in regard to matters or questions arising hereunder
that the Company and the Initial Holder may deem necessary or
desirable and that the Company and the Initial Holder deem shall not
adversely affect the interest of the Holders. All other modifications or
amendments to this Purchase Option shall require the written consent of and
be
signed by the Holder hereof.
10.2 Headings.
The
headings contained herein are for the sole purpose of convenience of reference,
and shall not in any way limit or affect the meaning or interpretation of any
of
the terms or provisions of this Purchase Option.
10.3 Entire
Agreement.
This
Purchase Option (together with the other agreements and documents being
delivered pursuant to or in connection with this Purchase Option) constitute
the
entire agreement of the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings of the parties,
oral and written, with respect to the subject matter hereof.
10.4 Binding
Effect.
This
Purchase Option shall inure solely to the benefit of and shall be binding upon,
the Holder and the Company and their respective successors, legal
representatives and permitted assigns, and (except for the Initial
Holder pursuant to Section 5.5.3, 10.1 and 10.5) no other person shall have
or be construed to have any legal or equitable right, remedy or claim under
or
in respect of or by virtue of this Purchase Option or any provisions herein
contained.
10.5 Governing
Law; Submission to Jurisdiction.
This
Purchase Option 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 Company hereby agrees that any action, proceeding or claim against
it
arising out of, or relating in any way to this Purchase Option shall be brought
and enforced in the courts of the State of New York or of the United States
of
America for the Southern District of New York, 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 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 8 hereof. Such mailing shall be deemed personal service and shall be
legal and binding upon the Company in any action, proceeding or claim. The
Company and the Holder agree that the prevailing party(ies) in any such action
shall be entitled to recover from the other party(ies) all of its reasonable
attorneys' fees and expenses relating to such action or proceeding and/or
incurred in connection with the preparation therefor.
13
10.6 Waiver,
Etc.
The
failure of the Company, the Initial Holder or the Holder to at any
time enforce any of the provisions of this Purchase Option shall not be deemed
or construed to be a waiver of any such provision, nor to in any way affect
the
validity of this Purchase Option or any provision hereof or the right of the
Company, the Initial Holder or any Holder to thereafter enforce each
and every provision of this Purchase Option. No waiver of any breach,
non-compliance or non-fulfillment of any of the provisions of this Purchase
Option shall be effective unless set forth in a written instrument executed
by
the party or parties against whom or which enforcement of such waiver is sought;
and no waiver of any such breach, non-compliance
or non-fulfillment shall be construed or deemed to be a waiver of any other
or
subsequent breach, non-compliance or non-fulfillment.
10.7 Exchange
Agreement.
As a
condition of the Holder’s receipt and acceptance of this Purchase Option, the
Holder agrees that, at any time prior to the complete exercise of this Purchase
Option by the Holder, if the Company and the Initial Holder enter into
an agreement (“Exchange Agreement”) pursuant to which they agree (subject to
Section 6.4 above) that all outstanding Purchase Options will be exchanged
for
securities or cash or a combination of both, then the Holder shall agree to
such
exchange and become a party to the Exchange Agreement.
{Remainder
of this page left intentionally blank. Signature page to
follow.}
14
IN
WITNESS WHEREOF, the Company has caused this Purchase Option to be signed by
its
duly authorized officer as of the ____ day of ,
2007.
| APEX BIOVENTURES ACQUISITION CORPORATION | ||
| |
|
|
| By: | ||
|
Xxxxxxx X. Xxxxxxx, Chairman and Chief Executive Officer |
||
00
Xxxx
Xxxx
Hillsborough,
California 94010
Date:_________________,
200__
The
undersigned hereby irrevocably elects to exercise all or a portion of the within
Purchase Option and to purchase ____ Units of APEX BIOVENTURES ACQUISITION
CORPORATION and hereby makes payment of $____________ (at the rate of $_________
per Unit) in payment of the Exercise Price pursuant thereto. Please issue the
Common Stock and Warrants as to which this Purchase Option is exercised in
accordance with the instructions given below.
or
The
undersigned hereby irrevocably elects to convert its right to purchase _____
Units purchasable under the within Purchase Option by surrender of the
unexercised portion of the attached Purchase Option (with a “Value” of
$_________ based on a “Market Price” of $___________). Please issue the
securities comprising the Units as to which this Purchase Option is exercised
in
accordance with the instructions given below.
| Signature | ||
| Signature Guaranteed |
INSTRUCTIONS
FOR REGISTRATION OF SECURITIES
| Name | ||
|
(Print
in Block Letters)
|
||
| Address |
NOTICE:
THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE
FACE OF THE WITHIN PURCHASE OPTION IN EVERY PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A BANK, OTHER
THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING MEMBERSHIP ON
A
REGISTERED NATIONAL SECURITIES EXCHANGE.
Form
to
be used to assign Purchase Option:
00
Xxxx
Xxxx
Hillsborough,
California 94010
ASSIGNMENT
(To
be
executed by the registered Holder to effect a transfer of the within Purchase
Option):
FOR
VALUE
RECEIVED,___________________________________________ does hereby sell, assign
and transfer unto______________________________________ the right to purchase
__________ Units of APEX BIOVENTURES ACQUISITION CORPORATION (“Company”)
evidenced by the within Purchase Option and does hereby authorize the Company
to
transfer such right on the books of the Company.
Dated:___________________,
200_
| Signature | ||
| Signature Guaranteed |
NOTICE:
THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE
FACE OF THE WITHIN PURCHASE OPTION IN EVERY PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A BANK, OTHER
THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM HAVING MEMBERSHIP ON
A
REGISTERED NATIONAL SECURITIES EXCHANGE.
