7,500,000 Units Apex Bioventures Acquisition Corporation UNDERWRITING AGREEMENT
7,500,000
Units
____________,
2007
Lazard
Capital Markets LLC
As
Representative of the
Several
Underwriters
c/o
Lazard Capital Markets LLC
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▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Apex
Bioventures Acquisition Corporation, a Delaware corporation (the “Company”),
proposes to sell to the several underwriters (the “Underwriters”) named in
Schedule I hereto for whom you are acting as representative (the
“Representative”) an aggregate of 7,500,000 units (the “Firm Units”), with each
unit consisting of one share of the Company’s common stock, $0.0001 par value
(the “Common Stock”) and one warrant (“Warrant”) to purchase Common Stock. The
respective amounts of the Firm Units to be so purchased by the several
Underwriters are set forth opposite their respective names in Schedule I hereto.
The Company also proposes to sell at the Underwriters’ option (“Over-allotment
Option”) an aggregate of up to 1,125,000 additional units of the Company (the
“Option Units”) as set forth below. The terms of the Warrants are provided for
in the form of a Warrant Agreement (as defined herein).
As
the
Representative, you have advised the Company (a) that you are authorized to
enter into this Agreement on behalf of the several Underwriters, and (b) that
the several Underwriters are willing, acting severally and not jointly, to
purchase the numbers of Firm Units set forth opposite their respective names
in
Schedule I, plus their pro rata portion of the Option Units if you elect to
exercise the Over-allotment Option in whole or in part for the accounts of
the
several Underwriters. The Firm Units and the Option Units (to the extent the
aforementioned option is exercised) are hereinafter collectively referred to
as
the “Units”, and the Units, the shares of Common Stock and the Warrants included
in the Units and the shares of Common Stock issuable upon exercise of the
Warrants included in the Units are hereinafter referred to as the “Securities.”
The offering of the Securities to the public is sometimes hereinafter referred
to as the “Offering.”
In
consideration of the mutual agreements contained herein and of the interests
of
the parties in the transactions contemplated hereby, the parties hereto agree
as
follows:
1. Representations
and Warranties of the Company.
The
Company represents and warrants to each of the Underwriters as
follows:
(a) A
registration statement on Form S-1 (File No. 333-135755) with respect to the
Securities has been prepared by the Company in conformity with the requirements
of the Securities Act of 1933, as amended (the “Act”), and the rules and
regulations (the “Rules and Regulations”) of the Securities and Exchange
Commission (the “Commission”) thereunder and has been filed with the Commission.
Copies of such registration statement, including any amendments thereto, the
preliminary prospectuses (meeting the requirements of the Rules and Regulations)
contained therein and the exhibits, financial statements and schedules, as
finally amended and revised, have heretofore been delivered by the Company
to
you. Such registration statement, together with any registration statement
filed
by the Company pursuant to Rule 462(b) under the Act, is herein referred to
as
the “Registration Statement,” which shall be deemed to include all information
omitted therefrom in reliance upon Rules 430A or 430C under the Act and
contained in the Prospectus referred to below, has become effective under the
Act and no post-effective amendment to the Registration Statement has been
filed
as of the date of this Agreement (the “Effective Date”). “Prospectus” means the
form of prospectus first filed with the Commission pursuant to and within the
time limits described in Rule 424(b) under the Act. Each preliminary prospectus
included in the Registration Statement prior to the time it becomes effective
is
herein referred to as a “Preliminary Prospectus.” Any reference herein to the
Prospectus shall be deemed to include any supplements or amendments thereto
filed with the Commission after the date of filing of the Prospectus under
Rule
424(b) under the Act, and prior to the termination of the offering of the Units
by the Underwriters. The Company has filed with the Commission a Form 8-A (File
Number ___-_____) providing for the registration under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), of the Securities.
(b) As
of the
Applicable Time (as defined below) and as of the Closing Date or the Option
Closing Date, as the case may be, the Statutory Prospectus (as defined below)
and the information included on Schedule II hereto, all considered together
(collectively, the “General Disclosure Package”) did not and will not include
any untrue statement of a material fact and did not and will not omit to state
a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to information
contained in or omitted from the General Disclosure Package in reliance upon,
and in conformity with, written information furnished to the Company by or
on
behalf of any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such information is that
described in Section 12 herein. The Company has not prepared or used and will
not prepare or use a “free writing prospectus” as defined in Rule 405 under the
Act, in connection with the offering of Securities. As used in this subsection
and elsewhere in this Agreement:
“Applicable
Time” means 5:00 p.m. (New York time) on the date of this Agreement or such
other time as agreed to by the Company and the Representative.
“Statutory
Prospectus” as of any time means the Preliminary Prospectus relating to the
Securities that is included in the Registration Statement immediately prior
to
that time.
-1-
(c) The
Company has been duly organized and is validly existing as a corporation in
good
standing under the laws of the State of Delaware, with corporate power and
authority to own or lease its properties and conduct its business as described
in the Registration Statement, the General Disclosure Package and the
Prospectus. The Company has no subsidiaries, direct or indirect. The Company
is
duly qualified to transact business and in good standing in all jurisdictions
in
which the conduct of its business requires such qualification except for any
jurisdiction where the failure to be so qualified would not be reasonably
expected to have a Material Adverse Effect (as defined in Section 1(n) below).
(d) The
outstanding shares of Common Stock have been duly authorized and validly issued
and are fully paid and non-assessable. The shares of Common Stock included
in
the Units have been duly authorized and, when issued and paid for as
contemplated herein, will be validly issued, fully paid and non-assessable;
and
no preemptive rights of stockholders exist with respect to any of such shares
or
the issue and sale thereof. The shares of Common Stock issuable upon exercise
of
the Warrants have been duly authorized and, when issued and paid for as
contemplated in the Warrants and the Warrant Agreement, will be validly issued,
fully paid and non-assessable; and no preemptive rights of stockholders exist
with respect to any of such shares or the issue and sale thereof.
(e) The
Warrants included in the Units have been duly authorized and, when executed
by
the Company, countersigned in the manner provided for in the Warrant Agreement
and delivered and paid for as contemplated herein, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement
is
considered in a proceeding in equity or at law).
(f) Neither
the filing of the Registration Statement nor the offering or sale of the Units
as contemplated by this Agreement gives rise to any rights, other than those
which have been waived or satisfied, for or relating to the registration of
any
securities of the Company except for those rights provided for (i) in the
Registration Rights Agreement, dated as of the date hereof, by and among the
Company and certain stockholders of the Company, and (ii) in the Unit Purchase
Option issued by the Company to the Underwriters. Except as set forth in the
Registration Statement, the General Disclosure Package and the Prospectus,
and
except for those rights provided for (i) in the Registration Rights Agreement,
dated as of the date hereof, by and among the Company and certain stockholders
of the Company, and (ii) in the Unit Purchase Option issued by the Company
to
the Underwriters, no holders of any securities of the Company or any rights
exercisable for or convertible or exchangeable into securities of the Company
have the right to require the Company to register any such securities of the
Company under the Act or to include any such securities in a registration
statement to be filed by the Company.
(g) The
information set forth under the caption “Capitalization” in the Registration
Statement and the Prospectus (and any similar section or information contained
in the General Disclosure Package) is true and correct. All of the Securities
conform to the descriptions thereof contained in the Registration Statement,
the
General Disclosure Package and the Prospectus. The form of the certificates
for
the shares of Common Stock conforms to the General Corporation law of the State
of Delaware.
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(h) Neither
the Commission nor any state regulatory authority has issued an order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus relating
to the proposed offering of the Units, and no proceeding for that purpose or
pursuant to Section 8A of the Act has been instituted or, to the Company’s
knowledge, threatened by the Commission or any state regulatory authority.
Neither the Commission nor any state regulatory authority has issued any order
preventing or suspending the effectiveness of the Registration Statement and
no
proceeding for that purpose or pursuant to Section 8A of the Act has been
instituted or is pending or, to the Company’s knowledge, is contemplated or
threatened by the Commission. The Registration Statement contains, and the
Prospectus and any amendments or supplements thereto will contain, all
statements which are required to be stated therein by, and will conform to,
the
requirements of the Act and the Rules and Regulations. The Registration
Statement and any amendment thereto do not contain, and will not contain, any
untrue statement of a material fact and do not omit, and will not omit, to
state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus and any amendments and
supplements thereto do not contain, and will not contain, any untrue statement
of a material fact; and do not omit, and will not omit, to state a material
fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to information
contained in or omitted from the Registration Statement or the Prospectus,
or
any such amendment or supplement, in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of any Underwriter
through the Representative specifically for use therein, it being understood
and
agreed that the only such information is that described in Section 12
herein.
(i) The
Company has not, directly or indirectly, distributed and will not distribute
any
offering material in connection with the offering and sale of the Units other
than any Preliminary Prospectus, the Prospectus and other materials, if any,
permitted under the Act.
(j) The
financial statements of the Company, together with related notes and schedules
as set forth in the Registration Statement, the General Disclosure Package
and
the Prospectus, present fairly the financial position and the results of
operations and cash flows of the Company, at the indicated dates and for the
indicated periods. Such financial statements and related schedules comply with
the applicable accounting requirements of the Act and the Rules and Regulations
and have been prepared in accordance with generally accepted accounting
principles (“GAAP”), consistently applied throughout the periods involved,
except as disclosed therein, and all adjustments necessary for a fair
presentation of results for such periods have been made. The summary and
selected financial and statistical data included in the Registration Statement,
the General Disclosure Package and the Prospectus present fairly the information
shown therein and such data has been compiled on a basis consistent with the
financial statements presented therein and the books and records of the Company.
The Company does not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations or any “variable
interest entities” within the meaning of Financial Accounting Standards Board
Interpretation No. 46), not disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus. There are no financial statements
(historical or pro forma) that are required to be included in the Registration
Statement, the General Disclosure Package or the Prospectus that are not
included as required.
-3-
(k) ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, who have certified certain financial statements that are
filed with the Commission as part of the Registration Statement, the General
Disclosure Package and the Prospectus, is an independent registered public
accounting firm with respect to the Company within the meaning of the Act and
the applicable Rules and Regulations and the Public Company Accounting Oversight
Board (United States) (the “PCAOB”).
(l) Except
as
disclosed in the Registration Statement, the General Disclosure Package and
the
Prospectus, the Company is not aware of (i) any material weakness in its
internal control over financial reporting or (ii) change in internal control
over financial reporting that has materially affected, or is reasonably likely
to materially affect, the Company’s internal control over financial
reporting.
(m) Solely
to
the extent that the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, and the rules and
regulations promulgated by the Commission and the American Stock Exchange
thereunder (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) has been applicable to the Company, there
is and has been no failure on the part of the Company to comply in all material
respects with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company has taken
all
necessary actions to ensure that it is in compliance in all material respects
with all provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are in effect and with which
the Company is required to comply and is actively taking steps to ensure that
it
will be in compliance in all material respects with other provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect or which will become applicable
to
the Company.
(n) There
is
no action, suit, claim or proceeding pending or, to the knowledge of the
Company, threatened against the Company or, to the knowledge of the Company,
pending or threatened against any of the Company’s stockholders immediately
prior to the offering of Units (the “Initial Stockholders”), before any court or
administrative agency or otherwise which if determined adversely to the Company
would either (i) have, individually or in the aggregate, a material adverse
effect on the earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the Company
or
(ii) prevent the consummation of the transactions contemplated hereby (the
occurrence of any such effect or any such prevention described in the foregoing
clauses (i) and (ii) being referred to as a “Material Adverse Effect”), except
as set forth in the Registration Statement, the General Disclosure Package
and
the Prospectus.
(o) The
Company has good and marketable title to all of the properties and assets
reflected in the financial statements hereinabove described or described in
the
Registration Statement, the General Disclosure Package and the Prospectus,
subject to no lien, mortgage, pledge, charge or encumbrance of any kind except
those reflected in such financial statements or described in the Registration
Statement, the General Disclosure Package and the Prospectus or which are not
material in amount.
(p) Since
the
respective dates as of which information is given in the Registration Statement,
the General Disclosure Package and the Prospectus, as each may be amended or
supplemented, there has not been any event or development in respect of the
business or condition of the Company that, individually or in the aggregate,
would have a Material Adverse Effect, whether or not occurring in the ordinary
course of business, and there has not been any material transaction entered
into
or any material transaction that is probable of being entered into by the
Company, other than transactions in the ordinary course of business and changes
and transactions described in the Registration Statement, the General Disclosure
Package and the Prospectus, as each may be amended or supplemented and no member
of the Company’s management has resigned from any position with the Company. The
Company has no material contingent obligations which are not disclosed in the
Company’s financial statements which are included in the Registration Statement,
the General Disclosure Package and the Prospectus.
-4-
Subsequent
to the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, except as
otherwise specifically stated therein or in this Agreement, the Company has
not:
(i) issued any securities or incurred any liability or obligation, direct or
contingent, for borrowed money; or (ii) declared or paid any dividend or made
any other distribution on or in respect to its capital stock.
(q) The
Company is not, nor with the giving of notice or lapse of time or both, will
be,
(i) in violation of its certificate of incorporation or by-laws, (ii) in
violation of or in default under any agreement, lease, contract, indenture
or
other instrument or obligation to which it is a party or by which it, or any
of
its properties, is bound or (iii) in violation of any law, order, rule or
regulation, judgment, order, writ or decree applicable to the Company of any
court or of any government, regulatory body or administrative agency or other
governmental body having jurisdiction over the Company, its properties or
assets. The execution, delivery and performance of this Agreement, the Warrant
Agreement and the Trust Agreement (as defined below), and the consummation
of
the transactions herein and therein contemplated and the fulfillment of the
terms hereof and thereof will not conflict with or result in a breach of any
of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other agreement or instrument to which the Company
is
a party or by which the Company or any of its properties is bound, or of the
certificate of incorporation or by-laws of the Company or any law, order, rule
or regulation judgment, order, writ or decree applicable to the Company of
any
court or of any government, regulatory body or administrative agency or other
governmental body having jurisdiction over the Company, its properties or
assets.
(r) The
execution and delivery of, and the performance by the Company of its obligations
under, this Agreement, the Warrant Agreement and the Trust Agreement have been
duly and validly authorized by all necessary corporate action on the part of
the
Company, and this Agreement has been duly executed and delivered by the Company.
On the Closing Date, the Warrant Agreement and the Trust Agreement will have
been duly executed and delivered and they will constitute the valid and binding
agreements of the Company, enforceable against the Company in accordance with
their respective terms, except (i) as such enforceability may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally; (ii) as such enforceability is
subject to general principles of equity (regardless of whether enforcement
is
considered in a proceeding in equity or at law); and (iii) as enforceability
of
any indemnification and contribution provisions may be limited under state
or
federal securities laws.
-5-
(s) Each
approval, consent, order, authorization, designation, declaration or filing
by
or with any regulatory, administrative or other governmental body necessary
in
connection with the execution and delivery by the Company of this Agreement,
the
Warrant Agreement and the Trust Agreement, and the consummation of the
transactions herein and therein contemplated (except such additional steps
as
may be required by the Commission, the National Association of Securities
Dealers, Inc. (the “NASD”) or such additional steps as may be necessary to
qualify the Securities for public offering by the Underwriters under state
securities or Blue Sky laws) has been obtained or made and is in full force
and
effect.
(t) The
Company holds all material licenses, certificates and permits from governmental
authorities which are necessary to the conduct of its business.
(u) Neither
the Company, nor to the Company’s knowledge, any of its affiliates, has taken or
will take, directly or indirectly, any action designed to cause or result in,
or
which has constituted or which might reasonably be expected to constitute,
the
stabilization or manipulation of the price of the shares of Common Stock to
facilitate the sale or resale of the Securities.
(v) The
Company is not and, after giving effect to the offering and sale of the Units
contemplated hereunder and the application of the net proceeds from such sale
as
described in the Registration Statement, the General Disclosure Package and
the
Prospectus, will not be an “investment company” within the meaning of such term
under the Investment Company Act of 1940, as amended (the “1940 Act”), and the
rules and regulations of the Commission thereunder.
(w) The
Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared
with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(x) The
statistical, industry-related and market-related data, if any, included in
the
Registration Statement, the General Disclosure Package and the Prospectus are
based on or derived from sources which the Company reasonably and in good faith
believes are reliable and accurate, and such data agree with the sources from
which they are derived.
(y) The
operations of the Company are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations thereunder
(collectively, the “Money Laundering Laws”), and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any
arbitrator involving the Company with respect to the Money Laundering Laws
is
pending or, to the Company’s knowledge, threatened.
-6-
(z) Neither
the Company nor, to the Company’s knowledge, any director, officer, agent,
employee or affiliate of the Company is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Company will not directly or indirectly use the
proceeds of the offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity,
for
the purpose of financing the activities of any person currently subject to
any
U.S. sanctions administered by OFAC.
(aa) The
Company is in compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder (“ERISA”); no
“reportable event” (as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which the Company would have any
liability; the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any “pension plan” or (ii) Sections 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published interpretations
thereunder (the “Code”); and each “pension plan” for which the Company would
have any liability that is intended to be qualified under Section 401(a) of
the
Code is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(bb) To
the
Company’s knowledge, there are no affiliations or associations between any
member of the NASD and any of the Company’s officers, directors or 5% or greater
securityholders.
(cc) The
Units, the Warrants and the Common Stock have been approved for listing subject
to notice of issuance on the American Stock Exchange.
(dd) There
are
no relationships or related-party transactions involving the Company or any
other person required to be described in the Registration Statement, the General
Disclosure Package and the Prospectus which have not been described as
required.
(ee) The
Company has not made any contribution or other payment to any official of,
or
candidate for, any federal, state or foreign office in violation of any law
which violation is required to be disclosed in the Registration Statement,
the
General Disclosure Package and the Prospectus.
(ff) All
information contained in the director’s
and officer’s questionnaires
completed by each of the Company’s Initial Stockholders and provided to the
Representative is true and correct in all respects and the Company has not
become aware of any information which would cause the information disclosed
in
the questionnaires completed by each Initial Stockholder to become inaccurate
and incorrect in any respect.
(gg) There
are
no claims, payments, arrangements, agreements or understandings relating to
the
payment of a finder’s, consulting or origination fee by the Company or any
Initial Stockholder with respect to the sale of the Securities hereunder or
any
other arrangements, agreements or understandings of the Company or, to the
Company’s knowledge, any Initial Stockholder that may affect the Underwriters’
compensation, as determined by the NASD. The Company has not made any direct
or
indirect payments (in cash, securities or otherwise) to: (i) any person, as
a
finder’s fee, consulting fee or otherwise, in consideration of such person
raising capital for the Company or introducing to the Company persons who raised
or provided capital to the Company; (ii) any NASD member; or (iii) any person
or
entity that has any direct or indirect affiliation or association with any
NASD
member, within the twelve months prior to the Effective Date. None of the net
proceeds of the offering will be paid by the Company to any participating NASD
member or its affiliates, except as specifically authorized herein and except
as
may be paid in connection with an initial acquisition or acquisition of control
by the Company of one or more assets or operating businesses through a merger,
capital stock exchange, asset or stock acquisition or other similar business
combination (“Business Combination”) and/or one or more other transactions after
the initial Business Combination, including without limitation in connection
with the payment of investment banking fees, fees in connection with fairness
opinions and other similar fees or expenses.
-7-
(hh) The
Company has entered into a warrant agreement with respect to the Warrants with
Continental Stock Transfer & Trust Company substantially in the form of
Exhibit 4.4 to the Registration Statement (the “Warrant Agreement”). The Company
has entered into the Investment Management Trust Agreement with respect to
certain proceeds of the offering substantially in the form of Exhibit 10.2
to
the Registration Statement.
(ii) The
Company has caused to be duly executed legally binding and enforceable
agreements (except (i) as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement
of
creditors’ rights generally; (ii) as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law); and (iii) as enforceability of any
indemnification and contribution provisions may be limited under state or
federal securities laws) in the form filed as Exhibit 10.1 to the Registration
Statement (the “Insider Letters”), pursuant to which each of the Initial
Stockholders of the Company has agreed to certain matters including, but not
limited to, certain matters described as being agreed to by such Initial
Stockholder under the “Proposed Business” section of the Registration Statement,
the General Disclosure Package and the Prospectus.
(jj) Except
as
disclosed in the Registration Statement, the General Disclosure Package and
the
Prospectus, no Initial Stockholder, employee, officer or director of the Company
is subject to any non-competition or non-solicitation agreement with any
employer or prior employer which could materially affect his ability to be
an
Initial Stockholder, employee, officer and/or director of the Company.
(kk) Upon
delivery and payment for the Firm Units on the Closing Date, the Company will
not be subject to Rule 419 under the Act and none of the Company’s outstanding
securities will be deemed to be a “▇▇▇▇▇ stock” as defined in Rule 3a-51-1 under
the Exchange Act.
(ll) The
Company does not have any specific Business Combination under consideration
or
contemplation and the Company has not, nor has anyone on its behalf, either
directly or indirectly, contacted any potential target business or their
representatives or had any discussions, formal or otherwise, with any of the
foregoing with respect to effecting a business combination with the Company.
The
Company has not engaged or retained any agent or other representative to
identify or locate any suitable target.
-8-
| 2. |
Purchase,
Sale and Delivery of the Firm Units.
|
(a) On
the
basis of the representations, warranties and covenants herein contained, and
subject to the conditions herein set forth, the Company agrees to sell to the
Underwriters and each Underwriter agrees, severally and not jointly, to
purchase, at a price of $7.68 per Unit (the “Initial Purchase Price”) (less
$0.24 per Unit purchased hereunder (the “Deferred Discount”) payable to the
Underwriters upon consummation of a Business Combination), the number of Firm
Units set forth opposite the name of each Underwriter in Schedule I hereof,
subject to adjustments in accordance with Section 13 hereof.
(b) Payment
for the Firm Units to be sold hereunder is to be made in Federal (same day)
funds against delivery of certificates therefor to the Representative for the
several accounts of the Underwriters. Such payment and delivery are to be made
through the facilities of The Depository Trust Company (“DTC”), New York, New
York at 10:00 a.m., New York time, on the third business day after the date
of
this Agreement (or the fourth business day following the date of this Agreement,
if the offering is priced after 4:30 p.m., New York time) or at such other
time
and date not later than five business days thereafter as you and the Company
shall agree upon, such time and date being herein referred to as the “Closing
Date.” (As used herein, “business day” means a day on which the New York Stock
Exchange is open for trading and on which banks in New York are open for
business and are not permitted by law or executive order to be closed.) Payment
of $57,600,000, representing the aggregate purchase price for the Firm Units
based on the Initial Purchase Price, shall be made on the Closing Date by wire
transfer in Federal (same day) funds, as follows: $56,890,000 (including
$1,800,000, representing the aggregate Deferred Discount without giving effect
to the Over-allotment Option) shall be deposited by the Representative directly
in the trust account established by the Company for the benefit of the public
securityholders as described in the Registration Statement (the “Trust Account”)
pursuant to the terms of an Investment Management Trust Agreement (the “Trust
Agreement”), and the remaining $710,000 of the proceeds (representing $50,000 of
the proceeds not required to be held in the Trust Account and $660,000 of
offering expenses), shall be paid to the Company, upon delivery to you of
certificates (in form and substance satisfactory to the Representative)
representing the Firm Units (or through the facilities of DTC) for the account
of the Underwriters. The certificates for the Firm Units will be delivered
in
such denominations and in such registrations as the Representative requests
in
writing not later than the second full business day prior to the Closing Date,
and will be made available for inspection by the Representative at least one
business day prior to the Closing Date.
(c) In
addition, on the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company hereby
grants to the several Underwriters the Over-allotment Option to purchase the
Option Units at the same price per Unit as set forth in the first paragraph
of
this Section 2. The Over-allotment Option granted hereby may be exercised in
whole or in part by giving written notice at any time within 30 days after
the
date of this Agreement, by you, as Representative of the several Underwriters,
to the Company setting forth the number of Option Units as to which the several
Underwriters are exercising the option and the time and date at which such
certificates are to be delivered. The time and date at which certificates for
Option Units are to be delivered shall be determined by the Representative
but
shall not be earlier than three nor later than 10 full business days after
the
exercise of such option, nor in any event prior to the Closing Date (such time
and date being herein referred to as the “Option Closing Date”). If the date of
exercise of the option is three or more days before the Closing Date, the notice
of exercise shall set the Closing Date as the Option Closing Date. The number
of
Option Units to be purchased by each Underwriter shall be in the same proportion
to the total number of Option Units being purchased as the number of Firm Units
being purchased by such Underwriter bears to the total number of Firm Units,
adjusted by you in such manner as to avoid fractional units. The Over-allotment
Option granted hereunder may be exercised only to cover over-allotments in
the
sale of the Firm Units by the Underwriters. You, as Representative of the
several Underwriters, may cancel such option at any time prior to its expiration
by giving written notice of such cancellation to the Company. To the extent,
if
any, that the option is exercised, payment for the Option Units shall be made
on
the Option Closing Date in Federal (same day funds) through the facilities
of
DTC in New York, New York drawn to the order of the Company. Payment for the
Option Units shall be made on the Option Closing Date by wire transfer in
Federal (same day) funds, as follows: $7.68 per Option Unit sold (including
the
Deferred Discount) shall be deposited in the Trust Account pursuant to the
Trust
Agreement upon delivery to you of certificates (in form and substance
satisfactory to the Representative) representing the Option Units sold (or
through the facilities of DTC) for the account of the Underwriters.
-9-
| 3. |
Offering
by the Underwriters.
|
It
is
understood that the several Underwriters are to make a public offering of the
Firm Units as soon as the Representative deems it advisable to do so. The Firm
Units are to be initially offered to the public at the initial public offering
price set forth in the Prospectus. The Representative may from time to time
thereafter change the public offering price and other selling terms. It is
further understood that you will act as the Representative for the Underwriters
in the offering and sale of the Units in accordance with an Agreement Among
Underwriters entered into by you and the several other
Underwriters.
| 4. |
Covenants
of the Company.
|
The
Company covenants and agrees with the several Underwriters that:
(a) The
Company will (A) prepare and timely file with the Commission under Rule 424(b)
of the Rules and Regulations a Prospectus in a form approved by the
Representative containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on Rules 430A or 430C
of
the Rules and Regulations and (B) not file any amendment to the Registration
Statement or distribute an amendment or supplement to the General Disclosure
Package or the Prospectus of which the Representative shall not previously
have
been advised and furnished with a copy or to which the Representative shall
have
reasonably objected in writing or which is not in compliance with the Rules
and
Regulations.
-10-
(b) The
Company will not make any offer relating to the Securities that would constitute
a “free writing prospectus” (as defined in Rule 405 under the Act) required to
be filed by the Company with the Commission under Rule 433 under the
Act.
(c) The
Company will advise the Representative promptly (A) when the Registration
Statement or any post-effective amendment thereto shall have become effective,
(B) of receipt of any comments from the Commission, (C) of any request of the
Commission for amendment of the Registration Statement or for supplement to
the
General Disclosure Package or the Prospectus or for any additional information,
and (D) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, or of the
institution of any proceedings for that purpose or pursuant to Section 8A of
the
Act. The Company will use its reasonable best efforts to prevent the issuance
of
any such order and to obtain as soon as possible the lifting thereof, if
issued.
(d) The
Company will cooperate with the Representative in endeavoring to qualify the
Securities for sale under the securities laws of such jurisdictions as the
Representative may reasonably have designated in writing and will make such
applications, file such documents, and furnish such information as may be
reasonably required for that purpose, provided the Company shall not be required
to qualify as a foreign corporation or to file a general consent to service
of
process in any jurisdiction where it is not now so qualified or required to
file
such a consent. The Company will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be required to continue
such qualifications in effect for so long a period as the Representative may
reasonably request for distribution of the Securities.
(e) The
Company will deliver to, or upon the order of, the Representative, from time
to
time, as many copies of any Preliminary Prospectus as the Representative may
reasonably request. The Company will deliver to, or upon the order of, the
Representative during the period when delivery of a Prospectus (or, in lieu
thereof, the notice referred to under Rule 173(a) under the Act) is required
under the Act, as many copies of the Prospectus in final form, or as thereafter
amended or supplemented, as the Representative may reasonably request. The
Company will deliver to the Representative at or before the Closing Date, four
signed copies of the Registration Statement and all amendments thereto including
all exhibits filed therewith, and will deliver to the Representative such number
of copies of the Registration Statement (including such number of copies of
the
exhibits filed therewith that may reasonably be requested), and of all
amendments thereto, as the Representative may reasonably request.
(f) The
Company will comply with the Act and the Rules and Regulations, and the Exchange
Act, and the rules and regulations of the Commission thereunder, so as to permit
the completion of the distribution of the Units as contemplated in this
Agreement and the Prospectus. If during the period in which a prospectus (or,
in
lieu thereof, the notice referred to under Rule 173(a) under the Act) is
required by law to be delivered by an Underwriter or dealer, any event shall
occur as a result of which, in the judgment of the Company or in the reasonable
opinion of the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
not misleading, or, if it is necessary at any time to amend or supplement the
Prospectus to comply with any law, the Company promptly will prepare and file
with the Commission an appropriate amendment to the Registration Statement
or
supplement to the Prospectus so that the Prospectus as so amended or
supplemented will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with applicable
law.
-11-
(g) If
the
General Disclosure Package is being used to solicit offers to buy the Securities
at a time when the Prospectus is not yet available to prospective purchasers
and
any event shall occur as a result of which, in the judgment of the Company
or in
the reasonable opinion of the Underwriters, it becomes necessary to amend or
supplement the General Disclosure Package in order to make the statements
therein, in the light of the circumstances, not misleading, or to make the
statements therein not conflict with the information contained in the
Registration Statement then on file, or if it is necessary at any time to amend
or supplement the General Disclosure Package to comply with any applicable
law,
the Company promptly will prepare, file with the Commission (if required) and
furnish to the Underwriters and any dealers an appropriate amendment or
supplement to the General Disclosure Package.
(h) The
Company will make generally available to its security holders, as soon as it
is
practicable to do so, but in any event not later than 15 months after the
Effective Date, an earnings statement (which need not be audited) in reasonable
detail, covering a period of at least 12 consecutive months beginning after
the
Effective Date, which earnings statement shall satisfy the requirements of
Section 11(a) of the Act and Rule 158 under the Act and will advise you in
writing when such statement has been so made available.
(i) Prior
to
the Closing Date, the Company will furnish to the Underwriters, as soon as
they
have been prepared by or are available to the Company, a copy of any unaudited
interim financial statements of the Company for any period subsequent to the
period covered by the most recent financial statements appearing in the
Registration Statement and the Prospectus.
(j) Except
for securities issued in the Private Placement (as defined below), the Company
hereby agrees that until the Company consummates a Business Combination, it
shall not issue any shares of Common Stock or any options or other securities
convertible into Common Stock, or any shares of preferred stock which
participate in any manner in the Trust Account or which vote as a class with
the
Common Stock on a Business Combination. Notwithstanding the foregoing, if (1)
during the last 17 days of the lock-up period, the Company issues an earnings
release or material news or a material event relating to the Company occurs;
or
(2) prior to the expiration of the lock-up period, the Company announces that
it
will release earnings results during the 16-day period following the last day
of
the lock-up period, then in each case the restrictions imposed by this Agreement
shall continue to apply until the expiration of the 18-day period beginning
on
the date of the release of the earnings results or the occurrence of material
news or a material event relating to the Company, as the case may be, unless
the
Representative waives, in writing, such extension.
(k) The
Company will use its commercially reasonable efforts to effect and maintain
the
listing of the Securities on the American Stock Exchange (“AMEX”).
(l) The
Company shall apply the net proceeds of its sale of the Securities as set forth
in the Registration Statement, General Disclosure Package and the Prospectus
and
shall file such reports with the Commission with respect to the sale of the
Securities and the application of the proceeds therefrom as may be required
in
accordance with Rule 463 under the Act.
-12-
(m) The
Company will maintain a transfer agent, warrant agent and, if necessary under
the jurisdiction of incorporation of the Company, a registrar for the Units,
Common Stock and Warrants, as applicable.
(n) The
Company will not take, directly or indirectly, any action that constitutes
or
might reasonably be expected to constitute, the stabilization or manipulation
of
the price of any securities of the Company.
(o) For
a
period of four years from the Effective Date, or such earlier time upon which
the Company is required to be liquidated, the Company will maintain the
registration of the Securities under the provisions of the Exchange Act.
(p) For
a
period of four years from the Effective Date, or until such earlier date upon
which the Company is required to be liquidated, the Company, at its expense,
shall cause its regularly engaged independent registered public accounting
firm
to review (but not audit) the Company’s financial statements for each of the
first three fiscal quarters prior to the announcement of quarterly financial
information and the filing of the Company’s Form 10-Q quarterly
report.
(q) The
Company shall not consummate a Business Combination with any Initial
Stockholder, or officer or director of the Company, or any entity which is
affiliated with any Initial Stockholder or officer or director of the Company
without first obtaining an opinion from an independent investment banking firm
that such Business Combination is fair to the Company’s stockholders from a
financial point of view.
Except
as
described in the Registration Statement, General Disclosure Package and the
Prospectus, the Company shall not pay any Initial Stockholder or any of their
affiliates or family members any fees or compensation from the Company, for
services rendered to the Company prior to, or in connection with, the
consummation of an initial Business Combination; provided that the Initial
Stockholders shall be entitled to reimbursement from the Company for their
reasonable out-of-pocket expenses incurred in connection with seeking and
consummating an initial Business Combination.
(r) The
Company will take all necessary actions to ensure that, upon and at all times
after the effectiveness of the Registration Statement, it will be in compliance
in all material respects with (i) all provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act
that
are then in effect and applicable to it and shall take such steps as are
necessary to ensure that it will be in compliance in all material respects
with
other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect upon the
effectiveness of such provisions to the extent they are applicable to the
Company and (ii) the requirements of the American Stock Exchange’s AMEX Company
Guide.
-13-
(s) For
a
period of four years from the Effective Date or until such earlier time upon
which the Company is required to be liquidated, the Company, upon request from
the Representative, will furnish to the Representative (Attn: General Counsel),
copies of such financial statements and other periodic and special reports
as
the Company from time to time furnishes generally to holders of any class of
securities, and promptly furnish to the Representative: (i) a copy of such
registration statements, financial statements and periodic and special reports
as the Company shall be required to file with the Commission and from time
to
time furnishes generally to holders of any such class of its securities; and
(ii) such additional documents and information with respect to the Company
and
the affairs of any future subsidiaries of the Company as the Representative
may
from time to time reasonably request, in each such case, subject to the
execution of a confidentiality agreement reasonably satisfactory to the
Company.
(t) For
a
period equal to four years from the date hereof or until such earlier time
upon
which the Company is required to be liquidated, the Company will not take any
action or actions which may prevent or disqualify the Company’s use of Form S-1
(or other appropriate form) for the registration of the Warrants and the Common
Stock issuable upon exercise of the Warrants, under the Act.
(u) In
the
event any person or entity (excluding attorneys, accountants and
similar service providers that are not affiliated or associated with the NASD
and are not brokers or finders) is engaged, in writing, to assist the issuer
in
finding or evaluating a merger candidate, the Company will provide the following
to the NASD and the Representative prior to consummation of an initial Business
Combination: (i) copies of agreements governing said services (which details
or
agreements may be appropriately redacted to account for privilege or
confidentiality concerns), and (ii) a justification as to why the person or
entity providing the merger and acquisition services should not be considered
an
“underwriter or related person” with respect to the Company’s initial public
offering as such term is defined in Rule 2710(a)(6) of the NASD Conduct Rules.
The Company also agrees that proper disclosure of such arrangement or potential
arrangement will be made in the proxy statement which the Company will file
for
purposes of soliciting stockholder approval for the initial Business
Combination.
(v) The
Company will maintain a system of internal accounting controls sufficient to
provide reasonable assurances that: (i) transactions are executed in accordance
with management’s general or specific authorization; (ii) transactions are
recorded as necessary in order to permit preparation of financial statements
in
accordance with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(w) The
Company shall, on the date hereof, retain its independent public accountants
to
audit the financial statements of the Company as of the Closing Date (the
“Audited Financial Statements”) reflecting the receipt by the Company of the
proceeds of the initial public offering. As soon as the Audited Financial
Statements become available, the Company shall promptly file a Current Report
on
Form 8-K with the Commission, which Report shall contain the Company’s Audited
Financial Statements. In addition, upon receipt of the proceeds from the sale
of
any Option Units after the Closing Date, the Company shall promptly file a
second or amended Current Report on Form 8-K with the Commission, which Report
shall provide updated financial information to reflect the receipt of such
additional proceeds.
-14-
Upon
the
earlier to occur of (i) the expiration or termination of the Over-allotment
Option and (ii) the exercise in full of the Over-allotment Option, the Company
shall, subject to having filed the Current Report(s) on Form 8-K pursuant to
the
previous paragraph, promptly issue a press release announcing that separate
trading of the Warrants and Common Stock will begin on the AMEX.
(x) The
Company shall advise the NASD if it is aware that any 5% or greater
securityholder of the Company (other than the Representative or its affiliates)
becomes an affiliate or associated person of an NASD member participating in
the
distribution of the Securities.
(y) The
Company shall, as set forth in the Trust Agreement and disclosed in the
Prospectus, cause the proceeds of the offering to be held in the Trust Account
to be invested only in “government securities” within the meaning of Section
2(a)(16) of the 1940 Act with a maturity of 180 days or less, or in money market
funds meeting certain conditions under Rule 2a-7 promulgated under the 1940
Act
with specific maturity dates. The Company will otherwise use its reasonable
best
efforts to conduct its business (both prior to and after the consummation of
an
initial Business Combination) in a manner so that it will not become subject
to
the 1940 Act.
(z) The
Company hereby agrees that prior to commencing its due diligence investigation
of any assets or operating business which the Company seeks to acquire (“Target
Business”) or obtaining the services of any vendor or service provider or other
entity it will use its reasonable best efforts to attempt to cause the Target
Business or the vendor or service provider or other entity with which the
Company executes an agreement to execute a waiver letter in the form attached
hereto as Exhibit A and B, respectively. It is understood that the Company
may
not be able to obtain such letters in some or all circumstances and that,
nonetheless, the Company may still proceed with such due diligence
investigations and enter into agreements with such parties or obtaining of
services, as applicable. Furthermore, prior to the Closing Date, each officer
and director of the Company shall execute a waiver letter in the form attached
hereto as Exhibit C.
(aa) The
Company shall not take any action or omit to take any action that would cause
the Company to be in breach or violation of its certificate of incorporation
or
by-laws and, the Company shall not take any action to amend or modify the
provisions of its certificate of incorporation that apply to the Company during
the period commencing upon the filing of the certificate of incorporation with
the Delaware Secretary of State and terminating upon the consummation of a
Business Combination, which action would result in such amendment or
modification becoming effective prior to an initial Business
Combination.
-15-
(bb) The
Company agrees: (i) that, prior to the consummation of any Business Combination,
it will submit such transaction to the Company’s stockholders for their approval
(“Initial Transaction Vote”) even if the nature of the acquisition is such as
would not ordinarily require stockholder approval under applicable state law;
and (ii) that, in the event that the Company does not effect a Business
Combination within 18 months from the consummation of this offering (subject
to
extension for an additional six-month period, as described in the Prospectus),
the Company will be liquidated as described in the Prospectus. With respect
to
the Initial Transaction Vote, the Company shall use its best efforts to cause
all of the Initial Stockholders to vote all shares of Common Stock owned by
them
and acquired prior to this offering (the “Initial Shares”), in accordance with
the vote of the majority of the IPO Shares (as hereinafter defined) voted (in
person or by proxy), at a meeting of the Company’s stockholders called for the
Initial Transaction Vote. At the time the Company seeks approval of any
potential initial Business Combination, the Company will offer each of the
holders of the Company’s Common Stock issued in this offering (the “IPO
Shares”), which holders were holders on the record date for determination of
stockholders entitled to vote, the right to convert such holder’s IPO Shares at
a per share price (the “Conversion Price”) equal to the amount in the Trust
Account (inclusive of any interest income therein, net of income taxes, and
including the Deferred Discount) as of two business days prior to the
consummation of the Business Combination divided by the total number of IPO
Shares (including any shares held by the Initial Stockholders). If the Company
elects to proceed with a Business Combination, it will promptly after the
consummation of such Business Combination convert shares, based upon the
Conversion Price, from those holders of IPO Shares who affirmatively requested
such conversion and who voted against the initial Business Combination; provided
that such holders continue to hold such IPO Shares through consummation of
the
Business Combination. If a majority of the IPO Shares that are voted are not
voted in favor of any initial Business Combination or holders of 30% or more
of
the IPO Shares vote against approval of any potential initial Business
Combination and exercise their conversion rights, the Company will not proceed
with such initial Business Combination and will not convert such
shares.
(cc) The
Company agrees that it will use its best efforts to prevent the Company from
becoming subject to Rule 419 under the Act prior to the consummation of any
Business Combination, including, but not limited to, using its best efforts
to
prevent any of the Company’s outstanding securities from being deemed to be a
“▇▇▇▇▇ stock” as defined in Rule 3a-51-1 under the Exchange Act during such
period.
(dd) The
Company agrees that the initial Target Business(es) that it acquires must have
an aggregate fair market value equal to at least 80% of the Company’s net assets
(including the funds held in the Trust Account other than the portion
representing the Deferred Discount) at the time of such acquisition. The fair
market value of such business(es) shall be determined by the Board of Directors
of the Company based upon standards the Board believes are generally accepted
by
the financial community. If the Board of Directors of the Company is not able
to
independently determine that the Target Business(es) have an aggregate fair
market value equal to at least 80% of the Company’s net assets (excluding the
Deferred Discount) at the time of such acquisition, the Company will obtain
an
opinion from an unaffiliated, independent third party appraiser, which may
or
may not be an investment banking firm which is a member of the NASD, with
respect to the satisfaction of such criteria. The Company is not required to
obtain an opinion from a third party as to the fair market value if the
Company’s Board of Directors independently determines that the Target
Business(es) have sufficient fair market value.
-16-
(ee) The
Company shall deposit into the Trust Account the $1,800,000 of proceeds from
the
private placement (“Private Placement”) of 1,800,000 Warrants to the Company’s
executive officers, directors and Initial Stockholders, to be completed on
or
prior to the Closing Date.
(ff) Within
five days of the earlier to occur of the expiration or termination of the
Over-allotment Option, the Company shall cancel shares of Common Stock held
by
the Initial Stockholders, in an amount (up to 281,250 shares of Common Stock)
sufficient to cause the Initial Stockholders to maintain control over Initial
Shares in an amount equal to 20% of the Company’s outstanding Common Stock after
giving effect to the offering of the Units and the exercise, if any, of the
Over-allotment Option. If the Underwriters exercise the Over-allotment Option
in
full, the Company shall not be required to cancel any shares of Common Stock
pursuant to this subsection.
(gg) Upon
consummation of the initial Business Combination, the Company shall pay to
the
Representative, on behalf of the Underwriters, the Deferred
Discount.
| 5. |
Costs
and Expenses.
|
The
Company will pay all costs, expenses and fees incident to the performance
of the
obligations of the Company under this Agreement, including, without limiting
the
generality of the foregoing, the following: accounting fees of the Company;
the
fees and disbursements of counsel for the Company; the cost of printing and
delivering to, or as requested by, the Underwriters copies of the Registration
Statement, Preliminary Prospectuses, the Prospectus, this Agreement and the
Listing Application; the filing fees of the Commission; the filing fees and
expenses incident to securing any required review by the NASD of the terms
of
the sale of the Units; the Listing Fee of the American Stock Exchange; fees
for
an investigative search firm of the Representative’s choice to conduct an
investigation of the principals of the Company and costs and expenses incurred
by the Underwriters in connection with the road show, up to a maximum aggregate
amount of $55,000. The Company shall not, however, be required to pay for
any of
the Underwriters’ expenses except that, if this Agreement shall not be
consummated because the conditions in Section 6 hereof are not satisfied,
or
because this Agreement is terminated by the Representative pursuant to Section
10(a)(i) hereof, or by reason of any failure, refusal or inability on the
part
of the Company to perform any undertaking or satisfy any condition of this
Agreement or to comply with any of the terms hereof on its part to be performed,
unless such failure, refusal or inability is due primarily to the default
or
omission of any Underwriter, the Company shall reimburse the several
Underwriters for reasonable out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Units or in contemplation of performing
their obligations hereunder; but the Company shall not in any event be liable
to
any of the several Underwriters for damages on account of loss of anticipated
profits from the sale by them of the Units.
-17-
| 6. |
Conditions
of Obligations of the Underwriters.
|
The
several obligations of the Underwriters to purchase the Firm Units on the
Closing Date and the Option Units, if any, on the Option Closing Date are
subject to the accuracy, as of the Applicable Time, the Closing Date or the
Option Closing Date, as the case may be, of the representations and warranties
of the Company contained herein, and to the performance by the Company of its
covenants and obligations hereunder and to the following additional
conditions:
(a) The
Registration Statement and all post-effective amendments thereto shall have
become effective and the Prospectus shall have been filed as required by Rule
424 under the Act, within the time period prescribed by, and in compliance
with,
the Rules and Regulations, and any request of the Commission for additional
information (to be included in the Registration Statement or otherwise) shall
have been disclosed to the Representative and complied with to its reasonable
satisfaction. No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose or pursuant to Section 8A under the Act shall
have
been taken or, to the knowledge of the Company, shall be contemplated or
threatened by the Commission and no injunction, restraining order or order
of
any nature by a Federal or state court of competent jurisdiction shall have
been
issued as of the Closing Date which would prevent the issuance of the
Units.
(b) The
Representative shall have received on the Closing Date or the Option Closing
Date, as the case may be, the opinion of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇, P.C. (“Mintz ▇▇▇▇▇”), counsel for the Company, dated the Closing Date or
the Option Closing Date, as the case may be, addressed to the Underwriters
(and
stating that it may be relied upon by counsel to the Underwriters) in
substantially the form attached hereto as Exhibit D.
In
rendering such opinion ▇▇▇▇▇ ▇▇▇▇▇ may rely as to matters governed by the laws
of states other than New York or Federal laws on local counsel in such
jurisdictions, provided that in each case ▇▇▇▇▇ ▇▇▇▇▇ shall state that they
believe that they and the Underwriters are justified in relying on such other
counsel.
(c) The
Representative shall have received on and as of the Closing Date or the Option
Closing Date, as the case may be, an opinion and statement of ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, with respect to such
matters as the Representative may reasonably request, and such counsel shall
have received such documents and information as they may reasonably request
to
enable them to pass upon such matters.
(d) You
shall
have received, on each of the date hereof, the Closing Date and, if applicable,
the Option Closing Date, a letter dated the date hereof, the Closing Date or
the
Option Closing Date, as the case may be, in form and substance satisfactory
to
you, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP confirming that they are an independent
registered public accounting firm with respect to the Company within the meaning
of the Act and the applicable Rules and Regulations and the PCAOB and stating
that in their opinion the financial statements and schedules examined by them
and included in the Registration Statement, the General Disclosure Package
and
the Prospectus comply in form in all material respects with the applicable
accounting requirements of the Act and the related Rules and Regulations; and
containing such other statements and information as are ordinarily included
in
accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial and statistical information contained in the
Registration Statement, the General Disclosure Package and the
Prospectus.
-18-
(e) The
Representative shall have received on the Closing Date and, if applicable,
the
Option Closing Date, as the case may be, a certificate or certificates of the
Chief Executive Officer and the Chief Financial Officer of the Company to the
effect that, as of the Closing Date or the Option Closing Date, as the case
may
be, each of them severally represents as follows:
(i)
The
Registration Statement has become effective under the Act and no stop order
suspending the effectiveness of the Registration Statement and no order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
has been issued, and no proceedings for such purpose or pursuant to Section
8A
of the Act have been taken or are, to his or her knowledge, contemplated or
threatened by the Commission;
(ii)
The
representations and warranties of the Company contained in Section 1 hereof
are
true and correct as of the Closing Date or the Option Closing Date, as the
case
may be
(except
for representations and warranties which refer to a particular date, in which
case such representations and warranties shall be true and correct as of such
date);
(iii)
All
filings required to have been made pursuant to Rules 424, 430A, 430B or 430C
under the Act have been made as and when required by such rules;
(iv)
He
or she
has carefully examined the General Disclosure Package and, in his or her
opinion, as of the Applicable Time, the statements contained in the General
Disclosure Package did not contain any untrue statement of a material fact,
and
such General Disclosure Package did not omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading;
(v)
He
or she
has carefully examined the Registration Statement and, in his or her opinion,
as
of the effective date of the Registration Statement, the Registration Statement
and any amendments thereto did not contain any untrue statement of a material
fact and did not omit to state a material fact required to be stated therein
or
necessary in order to make the statements therein not misleading, and since
the
effective date of the Registration Statement, no event has occurred which should
have been set forth in a supplement to or an amendment of the Prospectus which
has not been so set forth in such supplement or amendment;
(vi)
He
or she
has carefully examined the Prospectus and, in his or her opinion, as of its
date
and the Closing Date or the Option Closing Date, as the case may be, the
Prospectus and any amendments and supplements thereto did not contain any untrue
statement of a material fact and did not omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; and
-19-
(vii)
Since
the
respective dates as of which information is given in the Registration Statement,
the General Disclosure Package and the Prospectus, there has not been any
material adverse change or any development involving a prospective material
adverse change in or affecting the business, management, properties, assets,
rights, operations, condition (financial or otherwise) or prospects of the
Company, whether or not arising in the ordinary course of business.
(f) The
Company shall have furnished to the Representative such further certificates
and
documents confirming the representations and warranties, covenants and
conditions contained herein and related matters as the Representative may
reasonably have requested.
(g) The
Firm
Units and Option Units, if any, have been duly listed, subject to notice of
issuance, on the American Stock Exchange.
(h) The
Company shall have delivered to the Representative executed copies of the Trust
Agreement, the Warrant Agreement, and each of the Insider Letters.
(i) The
NASD
has not raised any objection with respect to the fairness and reasonableness
of
the underwriting terms and arrangements.
The
opinions and certificates mentioned in this Agreement shall be deemed to be
in
compliance with the provisions hereof only if they are in all material respects
reasonably satisfactory to the Representative and to ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
&
▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
If
any of
the conditions hereinabove provided for in this Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the
obligations of the Underwriters hereunder may be terminated by the
Representative by notifying the Company of such termination in writing at or
prior to the Closing Date or the Option Closing Date, as the case may
be.
In
such
event, the Company and the Underwriters shall not be under any obligation to
each other (except to the extent provided in Sections 5 and 8
hereof).
| 7. |
Conditions
of the Obligations of the Company.
|
The
obligations of the Company to sell and deliver the portion of the Securities
required to be delivered as and when specified in this Agreement are subject
to
the conditions that at the Closing Date or the Option Closing Date, as the
case
may be, (i) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and in effect or proceedings therefor initiated
or threatened and (ii) payment for the Firm Units and/or Option Units, as the
case may be, shall have been made to the Company in accordance with Section
2
hereof.
-20-
| 8. |
Indemnification.
|
(a) The
Company shall indemnify and hold harmless
each
Underwriter, its affiliates and each of its and their respective directors,
officers, members, employees, representatives and agents and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the
Securities Act of or Section 20 of the Exchange Act (collectively the
“Underwriter Indemnified Parties,” and each a “Underwriter Indemnified Party”)
against any loss, claim, damage, expense or liability whatsoever (or any action,
investigation or proceeding in respect thereof), joint or several, to which
such
Underwriter Indemnified Party may become subject, under the Securities Act
or
otherwise, insofar as such loss, claim, damage, expense, liability, action,
investigation or proceeding arises out of or is based upon (A) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any Registration Statement or the Prospectus, or in
any
amendment or supplement thereto or document incorporated by reference therein,
or (B) the omission or alleged omission to state in any Preliminary Prospectus,
any Registration Statement or the Prospectus, or in any amendment or supplement
thereto or document incorporated by reference therein, a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they were made, or (C) any breach
of the representations and warranties of the Company contained herein or failure
of the Company to perform its obligations hereunder or pursuant to any law,
any
act or failure to act, or any alleged act or failure to act, by any Underwriter
in connection with, or relating in any manner to, the Securities or the
Offering, and which is included as part of or referred to in any loss, claim,
damage, expense, liability, action, investigation or proceeding arising out
of
or based upon matters covered by subclause (A), (B) or (C) above of this
Section 8(a) (provided that the Company shall not be liable in the case of
any matter covered by this subclause (C) to the extent that it is determined
in
a final judgment by a court of competent jurisdiction that such loss, claim,
damage, expense or liability resulted directly from any such act or failure
to
act undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct), and shall reimburse the Underwriter
Indemnified Party promptly upon demand for any legal fees or other expenses
reasonably incurred by that Underwriter Indemnified Party in connection with
investigating, or preparing to defend, or defending against, or appearing as
a
third party witness in respect of, or otherwise incurred in connection with,
any
such loss, claim, damage, expense, liability, action, investigation or
proceeding, as such fees and expenses are incurred; provided, however, that
the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, expense or liability arises out of or is based upon an untrue
statement or alleged untrue statement in, or omission or alleged omission from
any Preliminary Prospectus, any Registration Statement or the Prospectus, or
any
such amendment or supplement thereto, made in reliance upon and in conformity
with written information furnished to the Company by the Representative by
or on
behalf of any Underwriter specifically for use therein,
which
information the parties hereto agree is limited to the information described
in
Section 12 hereof. This indemnity agreement is not exclusive and will be in
addition to any liability, which the Company might otherwise have and shall
not
limit any rights or remedies which may otherwise be available at law or in
equity to each Underwriter Indemnified Party.
-21-
(b) Each
Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company and its directors, its officers who signed the Registration Statement
and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
(collectively the “Company Indemnified Parties” and each a “Company Indemnified
Party”) against any loss, claim, damage, expense or liability whatsoever (or any
action, investigation or proceeding in respect thereof), joint or several,
to
which such Company Indemnified Party may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, expense, liability,
action, investigation or proceeding arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in
any
Preliminary Prospectus, any Registration Statement or the Prospectus, or in
any
amendment or supplement thereto, or (ii) the omission or alleged omission to
state in any Preliminary Prospectus, any Registration Statement or the
Prospectus, or in any amendment or supplement thereto, a material fact required
to be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the
Representative by or on behalf of any Underwriter specifically for use therein,
which information the parties hereto agree is limited to the information
described in Section 12 hereof, and shall reimburse the Company for any legal
or
other expenses reasonably incurred by such party in connection with
investigating or preparing to defend or defending against or appearing as third
party witness in connection with any such loss, claim, damage, liability,
action, investigation or proceeding, as such fees and expenses are
incurred.
Notwithstanding the provisions of this Section 8(b), in no event shall any
indemnity by a Underwriter under this Section 8(b) exceed the total
compensation received by such Underwriter in accordance with Section 2(a)
hereof.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, the indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8,
notify such indemnifying party in writing of the commencement of that action;
provided, however, that the failure to notify the indemnifying party shall
not
relieve it from any liability which it may have under this Section 8 except
to the extent it has been materially prejudiced by such failure; and, provided,
further, that the failure to notify an indemnifying party shall not relieve
it
from any liability which it may have to an indemnified party otherwise than
under this Section 8. If
any
such action shall be brought against an indemnified party, and it shall notify
the indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense of such action
with
counsel reasonably satisfactory to the indemnified party (which counsel shall
not, except with the written consent of the indemnified party, be counsel to
the
indemnifying party). After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such action, except as provided
herein, the indemnifying party shall not be liable to the indemnified party
under Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense of such action other than
reasonable costs of investigation; provided, however, that any indemnified
party
shall have the right to employ separate counsel in any such action and to
participate in the defense of such action but the fees and expenses of such
counsel (other than reasonable costs of investigation) shall be at the expense
of such indemnified party unless (i) the employment thereof has been
specifically authorized in writing by the Company in the case of a claim for
indemnification under Section 8(a) or the Underwriters in the case of a
claim for indemnification under Section 8(b), (ii) such indemnified party
shall have been advised by its counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party, or (iii) the indemnifying party has failed
to assume the defense of such action and employ counsel reasonably satisfactory
to the indemnified party within a reasonable period of time after notice of
the
commencement of the action or the indemnifying party does not diligently defend
the action after assumption of the defense, in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of (or, in the case of
a
failure to diligently defend the action after assumption of the defense, to
continue to defend) such action on behalf of such indemnified party and the
indemnifying party shall be responsible for legal or other expenses subsequently
incurred by such indemnified party in connection with the defense of such
action; provided, however, that the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations
or
circumstances, be liable for the reasonable fees and expenses of more than
one
separate firm of attorneys at any time for all such indemnified parties (in
addition to any local counsel), which firm shall be designated in writing by
the
Representative if the indemnified parties under this Section 8 consist of
any Underwriter Indemnified Party or by the Company if the indemnified parties
under this Section 8 consist of any Company Indemnified Parties.
Subject
to this Section 8(c), the amount payable by an indemnifying party under
Section 8 shall include, but not be limited to, (x) reasonable legal fees
and expenses of counsel to the indemnified party and any other expenses in
investigating, or preparing to defend or defending against, or appearing as
a
third party witness in respect of, or otherwise incurred in connection with,
any
action, investigation, proceeding or claim, and (y) all amounts paid in
settlement of any of the foregoing. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of judgment with respect to any pending or threatened
action or any claim whatsoever, in respect of which indemnification or
contribution could be sought under this Section 8 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each
indemnified party in form and substance reasonably satisfactory to such
indemnified party from all liability arising out of such action or claim and
(ii) does not include a statement as to or an admission of fault, culpability
or
a failure to act by or on behalf of any indemnified party. Subject to the
provisions of the following sentence, no indemnifying party shall be liable
for
settlement of any pending or threatened action or any claim whatsoever that
is
effected without its written consent (which consent shall not be unreasonably
withheld or delayed), but if settled with its written consent, if its consent
has been unreasonably withheld or delayed or if there be a judgment for the
plaintiff in any such matter, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability
by
reason of such settlement or judgment. In addition, if at any time an
indemnified party shall have requested that an indemnifying party reimburse
the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated
herein effected without its written consent if (i) such settlement is entered
into more than forty-five (45) days after receipt by such indemnifying party
of
the request for reimbursement, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least thirty (30) days prior to such
settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior
to
the date of such settlement.
-22-
(d) If
the
indemnification provided for in this Section 8 is unavailable or
insufficient to hold harmless an indemnified party under Section 8(a) or
Section 8(b), then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid, payable or otherwise
incurred by such indemnified party as a result of such loss, claim, damage,
expense or liability (or any action, investigation or proceeding in respect
thereof), as incurred, (i) in such proportion as shall be appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities, or (ii)
if
the allocation provided by clause (i) of this Section 8(d) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only
the
relative benefits referred to in clause (i) of this Section 8(d) but also
the relative fault of the Company on the one hand and the Underwriters on the
other with respect to the statements, omissions, acts or failures to act which
resulted in such loss, claim, damage, expense or liability (or any action,
investigation or proceeding in respect thereof) as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the
one hand and the Underwriters on the other with respect to such offering shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Securities purchased under this Agreement (before deducting
expenses) received by the Company bear to the total discounts and commissions
received by the Underwriters in connection with the Offering, in each case
as
set forth in the table on the cover page of the Prospectus (but in the case
of
the Underwriters, including the Deferred Discount only to the extent actually
received by the Underwriters). The relative fault of the Company on the one
hand
and the Underwriters on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on
the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement,
omission, act or failure to act; provided that
the
parties hereto agree that the written information furnished to the Company
by
the Underwriters for use in the Preliminary Prospectus, any Registration
Statement or the Prospectus, or in any amendment or supplement thereto, consists
solely of the information described in Section 12 hereof. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to herein. The amount paid or payable by
an
indemnified party as a result of the loss, claim, damage, expense, liability,
action, investigation or proceeding referred to above in this Section 8(d)
shall be deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection
with
investigating, preparing to defend or defending against or appearing as a third
party witness in respect of, or otherwise incurred in connection with, any
such
loss, claim, damage, expense, liability, action, investigation or proceeding.
Notwithstanding the provisions of this Section 8(d), no Underwriter shall
be required to contribute any amount in excess of the total compensation
received by such Underwriter in accordance with Section 2(a) hereof less
the amount of any damages which such Underwriter has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement, omission
or
alleged omission, act or alleged act or failure to act or alleged failure to
act. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The
Underwriters’ obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective obligations and not joint.
-23-
(e) In
any
proceeding relating to the Registration Statement, any Preliminary Prospectus,
the Prospectus or any supplement or amendment thereto, each party against whom
contribution may be sought under this Section 8 hereby consents to the
jurisdiction of any court having jurisdiction over any other contributing party,
agrees that process issuing from such court may be served upon it by any other
contributing party and consents to the service of such process and agrees that
any other contributing party may join it as an additional defendant in any
such
proceeding in which such other contributing party is a party.
(f) Any
losses, claims, damages, liabilities or expenses for which an indemnified party
is entitled to indemnification or contribution under this Section 8 shall be
paid by the indemnifying party to the indemnified party as such losses, claims,
damages, liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 8 and the representations and warranties
of
the Company set forth in this Agreement shall remain operative and in full
force
and effect, regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, the Company, its
directors or officers or any persons controlling the Company, (ii) acceptance
of
any Units and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any Underwriter, or any person controlling any
Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section
8.
| 9. |
Notices.
|
All
communications hereunder shall be in writing and, except as otherwise provided
herein, will be mailed, delivered, telecopied or telegraphed and confirmed
as
follows: if to the Underwriters, to Lazard Capital Markets LLC, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; if to the Company
to Apex Bioventures Acquisition Corporation, ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chairman and Chief Executive Officer.
| 10. |
Termination.
|
This
Agreement may be terminated by you by notice to the Company (a)
at
any time prior to the Closing Date or any Option Closing Date (if different
from
the Closing Date and then only as to Option Units) if any of the following
has
occurred: (i) since the respective dates as of which information is given in
the
Registration Statement, the General Disclosure Package and the Prospectus,
a
Material Adverse Effect shall have occurred, (ii) any outbreak or escalation
of
hostilities or declaration of war or national emergency or other national or
international calamity or crisis or material change in economic or political
conditions if the effect of such outbreak, escalation, declaration, emergency,
calamity, crisis or material change on the financial markets of the United
States would, in your judgment, make it impracticable or inadvisable to market
the Units or to enforce contracts for the sale of the Units, (iii) suspension
of
trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq Global Market or limitation on prices (other than
limitations on hours or numbers of days of trading) for securities on any such
Exchange, (iv) the enactment, publication, decree or other promulgation of
any
statute, regulation, rule or order of any court or other governmental authority
which in your reasonable opinion materially and adversely affects or may
materially and adversely affect the business or operations of the Company,
(v)
the declaration of a banking moratorium by United States or New York State
authorities, (vi) the suspension of trading of the Company’s securities by the
American Stock Exchange, the Commission, or any other governmental authority
or
(vii) the taking of any action by any governmental body or agency in respect
of
its monetary or fiscal affairs which in your reasonable opinion has a material
adverse effect on the securities markets in the United States; or
-24-
(b) as
provided in Sections 6 and 13 of this Agreement.
| 11. |
Successors.
|
This
Agreement has been and is made solely for the benefit of the Underwriters and
the Company and their respective successors, executors, administrators, heirs
and assigns, and the officers, directors and controlling persons referred to
herein, and no other person will have any right or obligation hereunder. No
purchaser of any of the Units from any Underwriter shall be deemed a successor
or assign merely because of such purchase.
| 12. |
Information
Provided by Underwriters.
|
The
Company and the Underwriters acknowledge and agree that the only information
furnished or to be furnished by any Underwriter to the Company for inclusion
in
the Registration Statement, the Preliminary Prospectus or the Prospectus
consists of the information set forth in the first, fourth and fifteenth
paragraphs under the caption “Underwriting” in the Prospectus and each
Underwriter’s name as contained on the cover page of the
Prospectus.
| 13. |
Default
by Underwriters.
|
If
on the
Closing Date or the Option Closing Date, as the case may be, any Underwriter
shall fail to purchase and pay for the portion of the Units which such
Underwriter has agreed to purchase and pay for on such date (otherwise than
by
reason of any default on the part of the Company), you, as Representative of
the
Underwriters, shall use your reasonable efforts to procure within 36 hours
thereafter one or more of the other Underwriters, or any others, to purchase
from the Company such amounts as may be agreed upon and upon the terms set
forth
herein, the Units which the defaulting Underwriter or Underwriters failed to
purchase. If during such 36 hours you, as such Representative, shall not have
procured such other Underwriters, or any others, to purchase the Units agreed
to
be purchased by the defaulting Underwriter or Underwriters, then (a) if the
aggregate number of Units with respect to which such default shall occur does
not exceed 10% of the Units to be purchased on the Closing Date or the Option
Closing Date, as the case may be, the other Underwriters shall be obligated,
severally, in proportion to the respective numbers of Units which they are
obligated to purchase hereunder, to purchase the Units which such defaulting
Underwriter or Underwriters failed to purchase, or (b) if the aggregate number
of Units with respect to which such default shall occur exceeds 10% of the
Units
to be purchased on the Closing Date or the Option Closing Date, as the case
may
be, the Company or you as the Representative of the Underwriters will have
the
right, by written notice given within the next 36-hour period to the parties
to
this Agreement, to terminate this Agreement without liability on the part of
the
non-defaulting Underwriters or of the Company except to the extent provided
in
Sections 5 and 8 hereof. In the event of a default by any Underwriter or
Underwriters, as set forth in this Section 13, the Closing Date or Option
Closing Date, as the case may be, may be postponed for such period, not
exceeding seven days, as you, as Representative, may determine in order that
the
required changes in the Registration Statement, the General Disclosure Package
or in the Prospectus or in any other documents or arrangements may be effected.
The term “Underwriter” includes any person substituted for a defaulting
Underwriter. Any action taken under this Section 13 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
-25-
| 14. |
Miscellaneous.
|
The
reimbursement, indemnification and contribution agreements contained in this
Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of
any
Underwriter or controlling person thereof, or by or on behalf of the Company
or
its directors or officers and (c) delivery of and payment for the Securities
under this Agreement.
The
Company acknowledges and agrees that:
(a)
the
Underwriters’ responsibility to the Company is solely contractual in nature, the
Underwriters have been retained solely to act as Underwriters in connection
with
the Offering and no fiduciary, advisory or agency relationship between the
Company and the Underwriters has been created in respect of any of the
transactions contemplated by this Agreement, irrespective of whether the
Underwriters or Lazard Frères & Co. LLC has advised or is advising the
Company on other matters;
(b)
the
price of the Securities set forth in this Agreement was established following
arms-length negotiations and the Company is capable of evaluating and
understanding, and understands and accepts, the terms, risks and conditions
of
the transactions contemplated by this Agreement;
(c)
it
has been advised that the Underwriters and Lazard Frères & Co. LLC and their
affiliates are engaged in a broad range of transactions which may involve
interests that differ from those of the Company and that the Underwriters have
no obligation to disclose such interests and transactions to the Company by
virtue of any fiduciary, advisory or agency relationship; and
(d)
it
waives, to the fullest extent permitted by law, any claims it may have against
the Underwriters for breach of fiduciary duty and agrees that the Underwriters
shall have no liability (whether direct or indirect) to the Company in respect
of such a fiduciary duty claim or to any person asserting a fiduciary duty
claim
on behalf of or in right of the Company, including stockholders, employees
or
creditors of the Company.
-26-
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
This
Agreement shall be governed by, and construed in accordance with, the law of
the
State of New York, including, without limitation, Section 5-1401 of the New
York
General Obligations Law. In any proceeding relating to the Registration
Statement, the Preliminary Prospectus, the Prospectus or any supplement or
amendment thereto, each party hereby (i) irrevocably submits to the jurisdiction
of the United States District Court sitting in the Southern District of New
York
and the courts of the State of New York located in New York county for the
purposes of any suit, action or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby and (ii) hereby waives, and
agrees not to assert in any such suit, action or proceeding, any claim that
it
is not personally subject to the jurisdiction of such court, that the suit,
action or proceeding is brought in an inconvenient forum or that the venue
of
the suit, action or proceeding is improper. Each party hereto consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained in this section shall
affect or limit any right to serve process in any other manner permitted by
law.
-27-
If
the
foregoing letter is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Company and the several Underwriters in
accordance with its terms.
| APEX BIOVENTURES ACQUISITION CORPORATION | ||
| |
|
|
| By: | /s/ | |
|
Name: |
||
| Title: | ||
The
foregoing Underwriting Agreement
is
hereby
confirmed and accepted as
of
the
date first above written.
LAZARD
CAPITAL MARKETS LLC
As Representative of the several
Underwriters
listed on Schedule I
By:
Lazard Capital Markets LLC
By
_____________________________________
Name:
Title:
Title:
-28-
SCHEDULE
I
Schedule
of Underwriters
|
Underwriter
|
Number
of Firm Units
to
be Purchased
|
|
Lazard
Capital Markets LLC
|
|
|
Ladenburg
▇▇▇▇▇▇▇▇ & Co. Inc.
|
|
|
__________
|
|
|
Total
|
7,500,000
|
-29-
SCHEDULE
II
Trade
date:
__________, 2007
Settlement
date:
___________, 2007
Selling
concession:
$___ per
Unit
-30-
EXHIBIT
A
▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Reference
is made to the Final Prospectus of Apex Bioventures Acquisition Corporation
(“Apex”), dated _____________, 2007 (the “Prospectus”). Capitalized terms used
and not otherwise defined herein shall have the meanings assigned to them in
the
Prospectus.
We
have
read the Prospectus and understand that Apex has established the Trust Account,
initially in an amount of $58,690,000 for the benefit of the Public Stockholders
and that Apex may disburse monies from the Trust Account only (i) to the Public
Stockholders in the event of the redemption of their shares or the liquidation
of Apex, (ii) to Apex in an aggregate amount of up to $1,600,000 of interest
accrued from the Trust Account for working capital or (iii) to Apex after it
consummates an initial Business Combination.
For
and
in consideration of Apex agreeing to evaluate the undersigned for purposes
of
consummating an initial Business Combination with it, the undersigned hereby
agrees that it does not have any right, title, interest or claim of any kind
in
or to any monies in the Trust Account (the “Claim”) and hereby waives any Claim
it may have in the future as a result of, or arising out of, any negotiations,
contracts or agreements with Apex and will not seek recourse against the Trust
Account for any reason whatsoever.
|
Print Name of Target Business |
||
|
Authorized Signature of Target Business |
||
-31-
EXHIBIT
B
▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Reference
is made to the Final Prospectus of Apex Bioventures Acquisition Corporation
(“Apex”), dated ___________, 2007 (the “Prospectus”). Capitalized terms used and
not otherwise defined herein shall have the meanings assigned to them in the
Prospectus.
We
have
read the Prospectus and understand that Apex has established the Trust Account,
initially in an amount of $58,690,000 for the benefit of the Public Stockholders
and that Apex may disburse monies from the Trust Account only (i) to the Public
Stockholders in the event of the redemption of their shares or the liquidation
of Apex, (ii) to Apex in an aggregate amount of up to $1,600,000 of interest
accrued from the Trust Account for working capital or (iii) to Apex after it
consummates an initial Business Combination.
For
and
in consideration of Apex engaging the services of the undersigned, the
undersigned hereby agrees that it does not have any right, title, interest
or
claim of any kind in or to any monies in the Trust Account (the “Claim”) and
hereby waives any Claim it may have in the future as a result of, or arising
out
of, any negotiations, contracts or agreements with Apex and will not seek
recourse against the Trust Account for any reason whatsoever.
|
Print Name of Vendor |
||
|
Authorized Signature of Vendor |
||
-32-
EXHIBIT
C
▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Reference
is made to the Final Prospectus of Apex Bioventures Acquisition Corporation
(“Apex”), dated ___________, 2007 (the “Prospectus”). Capitalized terms used and
not otherwise defined herein shall have the meanings assigned to them in the
Prospectus.
The
undersigned officer or director of Apex hereby acknowledges that Apex has
established the Trust Account, initially in an amount of $58,690,000 for the
benefit of the Public Stockholders in accordance with and subject to the terms
of this letter.
The
undersigned hereby waives any claim the undersigned may have in the future
as a
result of, or arising out of, any contracts or agreements with Apex to or
against the Trust Account and will not seek recourse against the Trust Account
for any reason whatsoever except to the extent the undersigned is entitled
to be
indemnified by Apex pursuant to its Certificate of Incorporation, as amended
to
the date hereof.
Notwithstanding
the foregoing, such waiver shall not apply to any shares acquired by the
undersigned in the public market.
|
Print Name of Officer/Director |
||
|
Authorized Signature of Officer/Director |
||
-33-
EXHIBIT
D
Form
of
Opinion
(1) The
Company has been duly organized and is validly existing as a corporation and
is
in good standing under the laws of its state of incorporation. The Company
is
duly qualified and licensed and in good standing as a foreign corporation in
each jurisdiction in which its ownership or leasing of any properties or the
character of its operations requires such qualification or licensing, except
where the failure to qualify would not have a material adverse effect on the
Company.
(2) All
issued and outstanding securities of the Company have been duly authorized
and
validly issued and are fully paid and non-assessable; the holders thereof are
not subject to personal liability by reason of being such holders and none
of
such securities were issued in violation of the preemptive rights of any
stockholder of the Company arising by operation of law or under the Certificate
of Incorporation or Bylaws of the Company. The offers and sales of the
outstanding Common Stock were at all relevant times either registered under
the
Act and the applicable state securities or Blue Sky Laws or exempt from such
registration. The authorized and outstanding capital stock of the Company is
as
set forth in the Prospectus.
(3) The
Securities have been duly authorized and, when issued and paid for, will be
validly issued, fully paid and non-assessable; the holders thereof are not
and
will not be subject to personal liability by reason of being such holders.
The
Securities are not and will not be subject to the preemptive rights of any
holders of any security of the Company arising by operation of law or under
the
Certificate of Incorporation, as amended, or Bylaws of the Company. When issued,
the Warrants, the Representative’s Purchase Option and the Representative’s
Warrants will constitute valid and binding obligations of the Company to issue
and sell, upon exercise thereof and payment therefor, the number and type of
securities of the Company called for thereby and such Warrants, the
Representative’s Purchase Option and the Representative’s Warrants, when issued,
in each case, are enforceable against the Company in accordance with their
respective terms, except (a) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, (b) as enforceability of any indemnification or contribution
provision may be limited under the federal and state securities laws, and (c)
that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought. The
certificates representing the Securities are in due and proper
form.
(4) This
Agreement, the Warrant Agreement, the Representative’s Purchase Option, the
Trust Agreement and the Escrow Agreement have each been duly and validly
authorized and, when executed and delivered by the Company, constitute the
valid
and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except (a) as such enforceability may
be
limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally, (b) as enforceability of any indemnification or
contribution provisions may be limited under the federal and state securities
laws, and (c) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
-34-
(5) The
execution, delivery and performance of this Agreement, the Warrant Agreement,
the Representative’s Purchase Option, the Escrow Agreement and the Trust
Agreement, the issuance and sale of the Securities, the consummation of the
transactions contemplated hereby and thereby, and compliance by the Company
with
the terms and provisions hereof and thereof, do not and will not, with or
without the giving of notice or the lapse of time, or both, (a) to such
counsel’s knowledge, conflict with, or result in a breach of, any of the terms
or provisions of, or constitute a default under, or result in the creation
or
modification of any lien, security interest, charge or encumbrance upon any
of
the properties or assets of the Company pursuant to the terms of, any mortgage,
deed of trust, note, indenture, loan, contract, commitment or other agreement
or
instrument filed as an exhibit to the Registration Statement, (b) result in
any
violation of the provisions of the Certificate of Incorporation or the Bylaws
of
the Company, or (c) to such counsel’s knowledge, violate any statute or any
judgment, order or decree, rule or regulation applicable to the Company of
any
court, domestic or foreign, or of any federal, state or other regulatory
authority or other governmental body having jurisdiction over the Company,
its
properties or assets.
(6) The
Registration Statement, each Preliminary Prospectus and the Prospectus and
any
post-effective amendments or supplements thereto (other than the financial
statements included therein, as to which no opinion need be rendered) each
as of
their respective dates complied as to form in all material respects with the
requirements of the Act and Regulations. The Securities and each agreement
filed
as an exhibit to the Registration Statement conform in all material respects
to
the description thereof contained in the Registration Statement and the
Prospectus. No statute or regulation required to be described in the Prospectus
is not described as required, nor are any contracts or documents of a character
required to be described in the Registration Statement or the Prospectus or
to
be filed as exhibits to the Registration Statement not so described or filed
as
required.
(7) No
facts
have come to the attention of counsel that caused them to believe that (i)
the
Registration Statement, at the time it became effective under the Act (including
the information deemed to be a part of the Registration Statement at the time
it
became effective pursuant to Rules 430A or 430C under the Act), contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
(ii) the General Disclosure Package, as of the Applicable Time, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (iii) the
Prospectus, or any supplement thereto, as of its date and as of the Closing
Date
or the Option Closing Date, as the case may be, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that such
counsel need express no view as to financial statements and schedules and other
financial data therein).
(8) The
Registration Statement is effective under the Act. To such counsel’s knowledge,
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
pending or threatened under the Act or applicable state securities
laws.
-35-
(9) To
such
counsel’s knowledge, there is no action, suit or proceeding before or by any
court of governmental agency or body, domestic or foreign, now pending, or
threatened against the Company that is required to be described in the
Registration Statement.
-36-