STOCK ESCROW AGREEMENT
THIS
STOCK ESCROW AGREEMENT, dated as of ,
2006
(the “Agreement”),
by
and among APEX BIOVENTURES ACQUISITION CORPORATION, a Delaware corporation
(the
“Company”),
the
undersigned parties listed under Initial Stockholders on the signature page
hereto (collectively, the “Initial
Stockholders”)
and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York corporation (the
“Escrow
Agent”).
WHEREAS,
the Company has entered into an Underwriting Agreement, dated
_________,
2006
(“Underwriting
Agreement”),
with
CRT CAPITAL GROUP, LLC (“CRT”),
acting as underwriter, pursuant to which, among other matters, CRT has agreed
to
purchase 9,375,000 units (the “Units”)
of the
Company’s securities. Each Unit consists of one share of the Company’s
common stock, par value $0.0001 per share (“Common
Stock”),
and
one Warrant, each Warrant to purchase one share of Common Stock, all as more
fully described in the Company’s final Prospectus, dated ,
2006
(the “Prospectus”),
comprising part of the Company’s Registration Statement on Form S-1, as amended
(File No. 333-135755) under the Securities Act of 1933, as amended
(the “Registration
Statement”),
which
was declared effective on ,
2006
(the “Effective
Date”);
WHEREAS,
the Initial Stockholders have agreed as a condition of the sale of the Units
to
deposit (a) those shares of Common Stock of the Company purchased by each of
them as set forth opposite their respective names under the heading “Number of
Founder Shares” in Exhibit
A
attached
hereto (collectively, the “Founder
Shares”),
and
(b) those shares of Common Stock of the Company issued as a stock dividend
to
each of them as set forth opposite their respective names under the heading
“Number of Dividend Shares” in Exhibit
A
attached
hereto (collectively the “Dividend
Shares” and collectively,
with the Founder Shares, plus such additional shares as may be hereafter
deposited into escrow pursuant to Section 4.2 or otherwise, less such Dividend
Shares which may be released in accordance with the Dividend Share Repurchase
Agreement (defined below) and Section 3 below, the “Escrow
Shares”),
in
escrow as hereinafter provided;
WHEREAS,
the Company and each of the Initial Stockholders have entered into a letter
agreement, dated as of _______, 2006 (the “Dividend
Share Repurchase Agreement”),
pursuant to which each of the Initial Stockholders has granted the Company
the
right to repurchase the Dividend Shares under certain circumstances;
and
WHEREAS,
the Company and the Initial Stockholders desire that the Escrow Agent accept
the
Escrow Shares, in escrow, to be held and disbursed as hereinafter
provided.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants,
representations and warranties contained herein and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Appointment
of Escrow Agent.
The Company and the Initial Stockholders hereby appoint the Escrow Agent to
act
in accordance with and subject to the terms of this Agreement, and the Escrow
Agent hereby accepts such appointment and agrees to act in accordance with
and
subject to such terms.
2. Deposit
of Escrow Shares.
On or before the Effective Date, each of the Initial Stockholders shall deliver
to the Escrow Agent certificates representing his or her respective Escrow
Shares, to be held and disbursed subject to the terms and conditions of this
Agreement. Each Initial Stockholder acknowledges that the certificate
representing his or her Escrow Shares is legended to reflect the deposit of
such
Escrow Shares under this Agreement.
3. Disbursement
of the Escrow Shares.
The Escrow Agent shall hold the Escrow Shares until (a) the expiration of one
year from consummation of the Company’s initial Business Combination (as such
term is defined in the Certificate of Incorporation of the Company), or (b)
any
time after six months from consummation of a Business Combination if the volume
weighted average price of the Common Stock equals or exceeds $11.50 per share
for any 20 trading days within any 30 trading day period (the “Escrow
Period”),
on
which date it shall, upon written instructions from each Initial Stockholder,
disburse each of the Initial Stockholder’s Escrow Shares to such Initial
Stockholder; provided, however, that (i) upon receipt of joint written notice
from the Company and the Initial Stockholders that the Company has exercised
its
right to repurchase some or all of the Dividend Shares pursuant to the Dividend
Repurchase Agreement, the Escrow Agent will release to the Company all of the
stock certificates evidencing Dividend Shares (it being understood that, if
the
Company has elected to purchase less than all of the Dividend Shares, it shall
(A) issue new stock certificates, registered to each of the Initial
Stockholders, representing the Dividend Shares held by each Initial Stockholder
which have not be so purchased, and (B) deliver such new stock certificates
to
the Escrow Agent to hold pursuant to this Agreement), (ii) if the Escrow Agent
is notified by the Company pursuant to Section 6.7 hereof that the Company
is being liquidated at any time during the Escrow Period, then immediately
prior
to the effectiveness of such liquidation, the Escrow Agent shall promptly
destroy the certificates representing the Escrow Shares and the Escrow Shares
shall no longer be considered to be issued and outstanding securities of the
Company, and (iii) if, after the Company consummates a Business Combination
(as
such term is defined in the Registration Statement), it (or the surviving
entity) subsequently consummates a liquidation, merger, stock exchange or other
similar transaction which results in all of the stockholders of such entity
having the right to exchange their shares of Common stock for cash, securities
or other property, then the Escrow Agent will, upon receipt of a certificate,
executed by the Chairman, Chief Executive Officer or Vice President of the
Company, in form reasonably acceptable to the Escrow Agent, that such
transaction is then being consummated, release the Escrow Shares to the Initial
Stockholders upon consummation of the transaction so that they can similarly
participate. The Escrow Agent shall have no further duties hereunder after
the
disbursement or destruction of the Escrow Shares in accordance with this
Section 3.
4. Rights
of Initial Stockholders in Escrow Shares.
4.1 Voting
Rights as a Stockholder.
Subject to the terms of the Insider Letter described in Section 4.4 hereof,
and except as herein provided, the Initial Stockholders shall retain all of
their rights as stockholders of the Company during the Escrow Period, including,
without limitation, the right to vote their Escrow Shares.
4.2 Dividends
and Other Distributions in Respect of the Escrow Shares.
During the Escrow Period, all dividends payable in cash with respect to the
Escrow Shares shall be paid to the Initial Stockholders, but all dividends
payable in stock or other non-cash property (the “Non-Cash
Dividends”)
shall
be delivered to the Escrow Agent to hold in accordance with the terms
hereof. As used herein, the term “Escrow Shares” shall be deemed to
include the Non-Cash Dividends distributed thereon, if any.
2
4.3 Restrictions
on Transfer.
During the Escrow Period, no sale, transfer or other disposition may be made
of
any or all of the Escrow Shares except, with respect to (a) an Initial
Stockholder that is an entity, a dividend, distribution or contribution to
any
individual or entity controlling, controlled by, or under common control with
such Initial Stockholder, or any stockholder, member, partner or limited partner
of such Initial Stockholder, for which no or nominal consideration is received,
and (b) with respect to an Initial Stockholder who is an individual, (i) to
a
member of Initial Stockholder’s immediate family or to a trust, the beneficiary
of which is an Initial Stockholder or a person related to an Initial Stockholder
by blood, marriage or adoption, or (ii) by virtue of the laws of descent and
distribution upon death of any Initial Stockholder; provided,
however,
that
such permissive transfers may be implemented only upon the respective
transferee’s written agreement to be bound by the terms and conditions of this
Agreement and of the Insider Letter signed by the Initial Stockholder
transferring the Escrow Shares. During the Escrow Period, no Initial
Stockholder shall pledge or grant a security interest in his, her or its Escrow
Shares or grant a security interest in his, her or its rights under this
Agreement.
4.4 Insider
Letters.
Each of the Initial Stockholders has executed a letter agreement with CRT and
the Company, dated as indicated on Exhibit A
hereto,
and which is filed as an exhibit to the Registration Statement (“Insider
Letter”),
respecting the rights and obligations of such Initial Stockholder in certain
events, including, but not limited to, the liquidation of the
Company.
5. Concerning
the Escrow Agent.
5.1 Good
Faith Reliance.
The Escrow Agent shall not be liable for any action taken or omitted by it
in
good faith and in the exercise of its own best judgment, and may rely
conclusively and shall be protected in acting upon any order, notice, demand,
certificate, opinion or advice of counsel (including counsel chosen by the
Escrow Agent), statement, instrument, report or other paper or document (not
only as to its due execution and the validity and effectiveness of its
provisions, but also as to the truth and acceptability of any information
therein contained) which is believed by the Escrow Agent to be genuine and
to be
signed or presented by the proper person or persons. The Escrow Agent
shall not be bound by any notice or demand, or any waiver, modification,
termination or rescission of this Agreement unless evidenced by a writing
delivered to the Escrow Agent signed by the proper party or parties and, if
the
duties or rights of the Escrow Agent are affected, unless it shall have given
its prior written consent thereto.
5.2 Indemnification.
The Escrow Agent shall be indemnified and held harmless by the Company from
and
against any expenses, including counsel fees and disbursements, or loss suffered
by the Escrow Agent in connection with any action, suit or other proceeding
involving any claim which in any way, directly or indirectly, arises out of
or
relates to this Agreement, the services of the Escrow Agent hereunder, or the
Escrow Shares held by it hereunder, other than expenses or losses arising from
the gross negligence or willful misconduct of the Escrow Agent. Promptly
after the receipt by the Escrow Agent of notice of any demand or claim or the
commencement of any action, suit or proceeding, the Escrow Agent shall notify
the other parties hereto in writing. In the event of the receipt of such
notice, the Escrow Agent, in its sole discretion, may commence an action in
the
nature of interpleader in an appropriate court to determine ownership or
disposition of the Escrow Shares or it may deposit the Escrow Shares with the
clerk of any appropriate court or it may retain the Escrow Shares pending
receipt of a final, non-appealable order of a court having jurisdiction over
all
of the parties hereto directing to whom and under what circumstances the Escrow
Shares are to be disbursed and delivered. The provisions of this
Section 5.2 shall survive in the event the Escrow Agent resigns or is
discharged pursuant to Sections 5.5 or 5.6 below.
3
5.3 Compensation.
The Escrow Agent shall be entitled to reasonable compensation from the Company
for all services rendered by it hereunder. The Escrow Agent shall also be
entitled to reimbursement from the Company for all expenses paid or incurred
by
it in the administration of its duties hereunder including, but not limited
to,
all legal counsel and agents’ fees and disbursements and all taxes or other
governmental charges.
5.4 Further
Assurances.
From time to time, on and after the date hereof, the Company and the Initial
Stockholders shall deliver, or cause to be delivered, to the Escrow Agent such
further documents and instruments and shall do or cause to be done such further
acts as the Escrow Agent shall reasonably request to carry out more effectively
the provisions and purposes of this Agreement, to evidence compliance herewith
or to assure itself that it is protected in acting hereunder.
5.5 Resignation.
The Escrow Agent may resign at any time and be discharged from its duties as
escrow agent hereunder by its giving the other parties hereto written notice
and
such resignation shall become effective as hereinafter provided. Such
resignation shall become effective at such time that the Escrow Agent shall
turn
over to a successor escrow agent appointed by the Company, the Escrow Shares
held hereunder. If no new escrow agent is so appointed within the sixty
(60) day period following the giving of such notice of resignation, the Escrow
Agent may deposit the Escrow Shares with any court it reasonably deems
appropriate.
5.6 Discharge
of Escrow Agent.
The Escrow Agent shall resign and be discharged from its duties as escrow agent
hereunder if so requested in writing at any time by the Company and a majority
of the Initial Stockholders, jointly; provided, however, that such resignation
shall become effective only upon acceptance of appointment by a successor escrow
agent as provided in Section 5.5.
5.7 Liability.
Notwithstanding anything herein to the contrary, the Escrow Agent shall not
be
relieved from liability hereunder for its own gross negligence or its own
willful misconduct.
6. Miscellaneous.
6.1 Governing
Law.
This Agreement shall for all purposes be deemed to be made under and shall
be
construed in accordance with the laws of the Delaware.
6.2 Third
Party Beneficiaries.
Each of the Initial Stockholders hereby acknowledges that CRT is a third party
beneficiary of this Agreement and this Agreement may not be modified or changed
without the prior written consent of CRT.
4
6.3 Entire
Agreement.
This Agreement contains the entire agreement of the parties hereto with respect
to the subject matter hereof and, except as expressly provided herein, may
not
be changed or modified except by an instrument in writing signed by the party
to
be charged and by CRT.
6.4 Headings.
The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation thereof.
6.5 Binding
Effect.
This Agreement shall be binding upon and inure to the benefit of the respective
parties hereto and their legal representatives, successors and
assigns.
6.6 Notices.
Any notice or other communication required or which may be given hereunder
shall
be in writing and either be delivered personally or be mailed, certified or
registered mail, or by private national courier service, return receipt
requested, postage prepaid, and shall be deemed given when so delivered
personally or, if mailed, two days after the date of mailing, as
follows:
If
to the
Company, to:
00
Xxxx
Xxxx
Xxxxxxxxxxxx,
Xxxxxxxxxx 00000
Attention:
Chief Executive Officer
If
to a
an Initial Stockholder, to his, her or its address set forth in Exhibit
A;
and
if to
the Escrow Agent, to:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Chairman
A
copy of
any notice sent hereunder shall be sent (which shall not constitute notice)
to:
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
000
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxx
X.
Xxxxxxxx, Esq. and
Xxxxxxx
X. Xxxxxxx, Esq.
and:
CRT
Capital Group, LLC
000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxxx, Managing Director
5
The
parties may change the persons and addresses to which the notices or other
communications are to be sent by giving written notice to any such change in
the
manner provided herein for giving notice.
6.7 Liquidation
of Company.
The
Company shall give the Escrow Agent written notification of the liquidation
and
dissolution of the Company in the event that the Company fails to consummate
a
Business Combination within the time period(s) specified in the
Prospectus.
6.8 Counterparts.
This
Agreement may be executed in several counterparts, each one of which may be
delivered by facsimile transmission and each of which shall constitute an
original, and together shall constitute but one instrument.
(Remainder
of page intentionally left blank. Signature pages to follow.)
6
IN
WITNESS WHEREOF, the undersigned have executed this Stock Escrow Agreement
as of
the date first written above.
|
COMPANY:
|
APEX BIOVENTURES ACQUISITION CORPORATION | ||
| By: | |||
|
K. Xxxxxxx Xxxxxxx, Chief Executive Officer |
|||
|
INITIAL
STOCKHOLDERS:
|
K. XXXXXXX XXXXXXX |
||
|
XXXX X. XXXXXXXX |
|||
|
XXXXX X. XXXXX |
|||
| EASTON ASSOCIATES, LLC | |||
| By: | |||
|
Xxxxxx X. Xxxxxx, Chairman |
|||
| INVIVOS LIMITED PARTNERS | |||
| By: | Invivos Partners, Ltd., its general partner | ||
| By: | |||
|
Xxxxxxx X. Xxxxxxx, President |
|||
| TREASURE ROAD PARTNERS, LTD. | |||
| By: | |||
|
Xxxx X. Xxxxxxxx, Manager |
|||
|
XXXXXXX X. XXXXXXX |
|||
|
XXXXXX X. XXX XXXXXXXX |
|||
EXHIBIT
A
TO
STOCK
PURCHASE AGREEMENT
|
Name
and Address of
Initial
Stockholder
|
Number
of
Founder Shares
|
Stock
Certificate
Number
|
Number
of
Dividend Shares
|
Stock
Certificate
Number
|
Date
of
Insider
Letter
|
|||||
|
K.
Xxxxxxx Xxxxxxx
00
Xxxx Xxxx
Xxxxxxxxxxxx,
XX 00000
|
598,252
|
001
|
89,738
|
August
__, 2006
|
||||||
|
Xxxx
X. Xxxxxxxx
000
Xxxxxx Xxxx Xxxx
Xxxx
Xxxx Xxx, XX 00000
|
152,578
|
002
|
22,887
|
August
__, 2006
|
||||||
|
Xxxxx
X. Xxxxx
00000
Xxxxxx Xxxx
Xxxxxxx,
XX 00000
|
141,797
|
003
|
21,270
|
August
__, 0000
|
||||||
|
Xxxxxx
Xxxxxxxxxx, LLC
000
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
|
384,033
|
004
|
57,605
|
August
__, 2006
|
||||||
|
Invivos
Limited Partners
0000
Xxxxxx Xxxxx
Xxxxx
Xxxxxxxxx, XX X0X 0X0
|
353,760
|
005
|
53,064
|
August
__, 0000
|
||||||
|
Xxxxxxxx
Xxxx Partners, Ltd.
000
Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx,
XX 00000
|
384,033
|
006
|
57,605
|
August
__, 2006
|
||||||
|
Xxxxxxx
X. Xxxxxxx
Department
of Biology, Room 68-30A
Massachusetts
Institute of Technology
Xxxxxxxxx,
XX 00000
|
141,797
|
007
|
21,270
|
August
__, 0000
|
||||||
|
Xxxxxx
X. Xxx Xxxxxxxx
Xxxxxxxx
Xxxxxx
Xxxx
Xxxxx, XX 00000
|
187,500
|
008
|
28,125
|
August
__, 2006
|
A-1
