Delaware |
6770 |
85-1260244 | ||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) 280 Park Avenue, Suite 43W, New York, NY 10017 Telephone: (646) 603-6716 |
(I.R.S. Employer Identification Number) |
Jeffrey C. Selman Carole H. Bellis Alan D. Seem DLA Piper LLP (US) 2000 University Avenue East Palo Alto, California 94303 Tel: (650) 833-2000 |
James L. Kelly Peter J. Ekberg DLA Piper LLP (US) 1251 Avenue of the Americas New York, New York 10020 Tel: (212) 335-4500 |
Kenneth A. Clark Michael E. Coke Lance E. Brady Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road Palo Alto, CA 94304 Tel: (650) 493-9300 |
Robert T. Ishii Wilson Sonsini Goodrich & Rosati, P.C. One Market Plaza Spear Tower, Suite 3300 San Francisco, CA 94105 Tel: (415) 947-2000 |
Large accelerated filer |
☐ |
Accelerated filer |
☐ | |||
Non-accelerated filer |
☒ |
Smaller reporting company |
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Emerging growth company |
• |
each issued and outstanding share of capital stock of Apexigen (including shares of capital stock that are issued and outstanding immediately prior to the Effective Time resulting from the conversion or exercise of shares of preferred stock of Apexigen (“Apexigen Preferred Stock”), warrants to purchase shares of common stock or preferred stock of Apexigen (“Apexigen Warrants”) and options to purchase shares of common stock of Apexigen (“Apexigen Options”), but excluding any dissenting shares), will be canceled and converted into the right to receive a number of shares of BCAC Common Stock equal to the Exchange Ratio (as defined below); |
• |
each share of capital stock of Apexigen held in the treasury of Apexigen shall be canceled without any conversion thereof and no payment or distribution shall be made with respect thereto; |
• |
each Apexigen Option that is outstanding immediately prior to the Effective Time, whether vested or unvested, will be assumed by BCAC and converted into an option to purchase shares of BCAC Common Stock (a “BCAC Option”) on substantially the same vesting and exercisability terms and conditions as such Apexigen Options, except that (i) such BCAC Option will represent the right to purchase a number of shares of BCAC Common Stock equal to the product (rounded down to the nearest whole share) of the number of shares of Apexigen Common Stock subject to such Apexigen Option multiplied by the Exchange Ratio, and (ii) the exercise price per share for each such BCAC Option will be equal to the quotient of (A) the exercise price per share of such Apexigen Option in effect immediately prior to the Effective Time, divided by (B) the Exchange Ratio (the exercise price per share, as so determined, being rounded up to the nearest full cent); and |
• |
each Apexigen Warrant that is issued and outstanding immediately prior to the Effective Time will be treated in accordance with the terms thereof, as may be amended prior to the Effective Time by Apexigen and the holder thereof with the consent of BCAC. |
Sincerely, |
Samuel P. Wertheimer Chief Executive Officer and Chairman |
By Order of the Board of Directors |
Samuel P. Wertheimer Chief Executive Officer and Chairman |
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F-1 |
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Annexes |
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Q: |
WHAT IS THE BUSINESS COMBINATION? |
A: | BCAC, Merger Sub and Apexigen have entered into the Business Combination Agreement, pursuant to which Merger Sub will merge with and into Apexigen, with Apexigen surviving the Merger as a wholly owned subsidiary of BCAC. In connection with the Closing, BCAC will be renamed “Apexigen, Inc.” |
Q: |
WHY AM I RECEIVING THIS DOCUMENT? |
A: | BCAC is sending this proxy statement/prospectus to its stockholders to help them decide how to vote their shares of BCAC Common Stock with respect to the matters to be considered at the Stockholders’ Meeting. The Business Combination cannot be completed unless BCAC’s stockholders approve the Business Combination Proposal, the Charter Proposals, the Director Election Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal and the ESPP Proposal set forth in this proxy statement/prospectus for their approval. Information about the Stockholders’ Meeting, the Business Combination, and the other business to be considered by stockholders at the Stockholders’ Meeting is contained in this proxy statement/prospectus. This document constitutes a proxy statement and a prospectus of BCAC. It is a proxy statement because the board of directors of BCAC is soliciting proxies from its stockholders using this proxy statement/prospectus. It is a prospectus because BCAC, in connection with the Business Combination, is offering shares of BCAC Common Stock to Apexigen stockholders in exchange for the outstanding shares of Apexigen capital stock and certain equity awards of Apexigen pursuant to the terms of the Business Combination Agreement. See “ The Business Combination Agreement-Merger Consideration |
Q: |
WHAT WILL APEXIGEN STOCKHOLDERS RECEIVE IN THE BUSINESS COMBINATION? |
A: | Subject to the terms of the Business Combination Agreement, the Aggregate Closing Merger Consideration with respect to all holders of Apexigen securities outstanding immediately prior to the Closing, which will be issued in the form of shares or equity awards relating to shares of BCAC Common Stock, will equal to the quotient of (a) the sum of (i) $205,000,000, and (ii) the sum of the exercise prices of all Apexigen Options to purchase shares of Apexigen Common Stock outstanding immediately prior to the Effective Time, divided by (b) $10.00. |
• | each issued and outstanding share of Apexigen capital stock (including shares of capital stock that are issued and outstanding immediately prior to the Effective Time resulting from the conversion or |
exercise of shares of the Apexigen Preferred Stock, Apexigen Warrants, and Apexigen Options, but excluding any dissenting shares) will be converted into the right to receive a number of shares of BCAC Common Stock equal to the Exchange Ratio; |
• | each share of capital stock of Apexigen held in the treasury of Apexigen shall be canceled without any conversion thereof and no payment or distribution shall be made with respect thereto; |
• | each Apexigen Option that is outstanding immediately prior to the Effective Time, whether vested or unvested, will be assumed by BCAC and converted into a BCAC Option on substantially the same vesting and exercisability terms and conditions as such Apexigen Options, except that (i) such BCAC Option will represent the right to purchase that whole number of shares of BCAC Common Stock (rounded down to the nearest whole share) equal to the product of the number of shares of Apexigen Common Stock subject to such Apexigen Option multiplied by the Exchange Ratio, and (ii) the exercise price per share for each such BCAC Option will be equal to the quotient of (A) the exercise price per share of such Apexigen Option in effect immediately prior to the Effective Time, divided by (B) the Exchange Ratio (the exercise price per share, as so determined, being rounded up to the nearest full cent); |
• | each Apexigen Warrant that is issued and outstanding immediately prior to the Effective Time will be treated in accordance with the terms thereof, as may be amended prior to the Effective Time by Apexigen and the holder thereof with the consent of BCAC. |
Q: |
WHEN DO YOU EXPECT THE BUSINESS COMBINATION TO BE COMPLETED? |
A: | It is currently anticipated that the Business Combination will be consummated promptly following the Stockholders’ Meeting, which is set for [●], 2022; however, such meeting could be adjourned, as described herein. Neither BCAC nor Apexigen can assure you of when or if the Business Combination will be completed and it is possible that factors outside of the control of both companies could result in the Business Combination being completed at a different time or not at all. BCAC must first obtain the approval of its stockholders for certain of the proposals set forth in this proxy statement/prospectus for their approval, Apexigen must first obtain the written consent of its stockholders for the Merger, and BCAC and Apexigen must also first obtain certain necessary regulatory approvals and satisfy other closing conditions set forth in the Business Combination Agreement. See “ The Business Combination Agreement-Conditions to the Business Combination |
Q: |
WHAT HAPPENS IF THE BUSINESS COMBINATION IS NOT COMPLETED? |
A: | If the Business Combination is not completed, Apexigen stockholders will not receive any consideration for their shares of Apexigen capital stock or Apexigen equity awards, and the issued and outstanding Apexigen Options and Apexigen Warrants will not be exercised on a cashless basis or assumed in accordance with their terms. Instead, Apexigen will remain an independent company and BCAC would search for another target business with which to complete a business combination. Further, the Existing Charter provides that BCAC must complete its initial business combination within 15 months from the closing of the IPO (or up to 21 months from the closing of the IPO, or November 2, 2022, provided that the Sponsor or its designee must deposit into the Trust Account for every additional month beyond 15 months (or May 2, 2022), funds |
equal to the product of (x) $0.033 multiplied by (y) that number of shares of BCAC Common Stock included as part of the units sold in the BCAC IPO and not otherwise redeemed). If the Business Combination is not completed, BCAC may not be able to find a suitable target business and complete the initial business combination within such time period. If BCAC has not completed the initial business combination within such time period, it will: (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter, redeem the Public Shares, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account including interest earned on the funds held in the Trust Account and not previously released to BCAC to pay its taxes (less up to $100,000 of interest to pay dissolution expenses), divided by the number of then outstanding Public Shares, which redemption will completely extinguish public stockholders’ rights as stockholders (including the right to receive further liquidating distributions, if any), subject to applicable law, and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the remaining BCAC stockholders and board of directors, dissolve and liquidate, subject in the case of clauses (ii) and (iii) above to BCAC’s obligations under Delaware law to provide for claims of creditors and the requirements of other applicable law. In such case, the Public Stockholders may only receive $[●] per Public Share. Furthermore, the Sponsor and the Representative have no Redemption Rights with respect to their Founder Shares in the event a business combination is not effected in the Completion Window, and, accordingly, their Founder Shares will be worthless. Additionally, in the event of a liquidation of BCAC, there will be no distribution with respect to BCAC’s outstanding Warrants. Accordingly, the Warrants will expire worthless. In certain circumstances, the Public Stockholders may receive less than $[●] per share on the redemption of their Public Shares. See “The Business Combination Agreement-Termination Risk Factors |
Q: |
HOW WILL BCAC BE MANAGED AND GOVERNED FOLLOWING THE BUSINESS COMBINATION? |
A: | BCAC does not currently have any management-level employees other than Dr. Samuel Wertheimer, our Chief Executive Officer, Scott A. Katzmann, our President, and Patrick A. Sturgeon, our Chief Financial Officer. Following the Closing, the Combined Company’s executive officers are expected to be the current management team of Apexigen. See “ Management of the Combined Company Following the Business Combination . |
Q: |
WILL BCAC OBTAIN NEW FINANCING IN CONNECTION WITH THE BUSINESS COMBINATION? |
A: | In connection with the execution of the Business Combination Agreement, BCAC entered into subscription agreements with the PIPE Investors and may enter into additional Subscription Agreements with other investors prior to the Closing, pursuant to which the PIPE Investors, contingent upon the consummation of the Business Combination, agreed to subscribe for and purchase, and BCAC agreed to issue and sell to the PIPE Investors, an aggregate of 1,502,000 PIPE Units at a purchase price of $10.00 per PIPE Unit for an aggregate purchase price of $15,020,000 (the “PIPE Investment”). Each PIPE Unit consists of one share of BCAC Common Stock and one-half of one warrant. Each whole warrant entitles the PIPE Investor to purchase one share of BCAC Common Stock at an exercise price of $11.50 per share during the period |
commencing 30 days after the Closing and terminating on the five year anniversary of the Closing. As of [●], 2022, the closing price on Nasdaq of the BCAC units was $[●] per unit and the closing price of the BCAC Common Stock was $[●] per share. The shares of BCAC Common Stock to be issued pursuant to the Subscription Agreements will not be registered under the Securities Act and will be issued in reliance upon the exemption provided under Section 4(a)(2) of the Securities Act. See “ Other Agreements-Subscription Agreements |
Q: |
WHAT EQUITY STAKE WILL CURRENT BCAC PUBLIC STOCKHOLDERS, THE SPONSOR, THE REPRESENTATIVE, FORMER APEXIGEN EQUITYHOLDERS, PIPE INVESTORS AND LINCOLN PARK HOLD IN BCAC FOLLOWING THE CLOSING? |
A: | The total number of shares of Combined Company common stock outstanding at the Closing (and your relative ownership levels) will be affected by the number of shares of BCAC Common Stock that are |
redeemed in connection with the Business Combination, and the number of BCAC warrants that are exercised. The Business Combination Agreement does not provide for any minimum cash condition. |
No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
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Number of Shares |
% |
Number of Shares |
% |
Number of Shares |
% |
Number of Shares |
% |
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BCAC Public Stockholders |
5,061,592 | 19.1% | 2,530,796 | 10.6% | 1,265,398 | 5.6% | — | 0.0% | ||||||||||||||||||||||||
Sponsor |
1,627,000 | 6.2% | 1,627,000 | 6.8% | 1,452,520 | 6.4% | 1,167,000 | 5.5% | ||||||||||||||||||||||||
Representative |
57,500 | 0.2% | 57,500 | 0.2% | 57,500 | 0.3% | 57,500 | 0.3% | ||||||||||||||||||||||||
Former Apexigen equityholders |
18,104,074 | 68.2% | 18,104,074 | 75.5% | 18,104,074 | 80.3% | 18,104,074 | 86.3% | ||||||||||||||||||||||||
PIPE Investors |
1,502,000 | 5.7% | 1,502,000 | 6.3% | 1,502,000 | 6.7% | 1,502,000 | 7.2% | ||||||||||||||||||||||||
Lincoln Park |
150,000 | 0.6% | 150,000 | 0.6% | 150,000 | 0.7% | 150,000 | 0.7% | ||||||||||||||||||||||||
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Total |
26,502,166 | 100.0% | 23,971,370 | 100.0% | 22,531,492 | 100.0% | 20,980,574 | 100.0% | ||||||||||||||||||||||||
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No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
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Number of Shares |
% |
Number of Shares |
% |
Number of Shares |
% |
Number of Shares |
% |
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BCAC Public Stockholders |
5,061,592 | 13.4% | 2,530,796 | 7.3% | 1,265,398 | 3.8% | — | 0.0% | ||||||||||||||||||||||||
Sponsor |
1,627,000 | 4.3% | 1,627,000 | 4.7% | 1,452,520 | 4.4% | 1,167,000 | 3.7% | ||||||||||||||||||||||||
Representative |
57,500 | 0.2% | 57,500 | 0.2% | 57,500 | 0.2% | 57,500 | 0.2% | ||||||||||||||||||||||||
Former Apexigen equityholders |
18,104,074 | 48.0% | 18,104,074 | 51.9% | 18,104,074 | 54.5% | 18,104,074 | 57.5% | ||||||||||||||||||||||||
PIPE Investors |
1,502,000 | 4.0% | 1,502,000 | 4.3% | 1,502,000 | 4.5% | 1,502,000 | 4.8% | ||||||||||||||||||||||||
Lincoln Park |
150,000 | 0.4% | 150,000 | 0.4% | 150,000 | 0.4% | 150,000 | 0.5% | ||||||||||||||||||||||||
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Additional Potential Dilution |
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Common Stock issuable upon exercise of the Public Warrants (1) |
2,875,000 | 7.6% | 2,875,000 | 8.2% | 2,875,000 | 8.7% | 2,875,000 | 9.1% |
No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
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Number of Shares |
% |
Number of Shares |
% |
Number of Shares |
% |
Number of Shares |
% |
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Common Stock issuable upon exercise of the PIPE Warrants (1) |
751,000 | 2.0% | 751,000 | 2.2% | 751,000 | 2.3% | 751,000 | 2.4% | ||||||||||||||||||||||||
Common Stock issuable upon exercise of the Private Placement Warrants (1) |
123,500 | 0.3% | 123,500 | 0.4% | 123,500 | 0.4% | 123,500 | 0.4% | ||||||||||||||||||||||||
Common Stock issuable to Lincoln Park 90 days after the Closing (2) |
500,000 | 1.3% | 500,000 | 1.4% | 500,000 | 1.5% | 500,000 | 1.6% | ||||||||||||||||||||||||
Common Stock issuable upon exercise of assumed Apexigen Options and Apexigen Warrants (3) |
3,464,485 | 9.2% | 3,464,485 | 9.9% | 3,464,485 | 10.4% | 3,464,485 | 11.0% | ||||||||||||||||||||||||
Common Stock issuable under the EIP (4) |
3,180,260 | 8.4% | 2,876,565 | 8.3% | 2,703,780 | 8.1% | 2,517,669 | 8.0% | ||||||||||||||||||||||||
Common Stock issuable under the ESPP (4) |
318,026 | 0.9% | 287,657 | 0.8% | 270,378 | 0.8% | 251,767 | 0.8% | ||||||||||||||||||||||||
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Total Diluted Shares at Closing |
37,714,437 | 100.0% | 34,849,577 | 100.0% | 33,219,635 | 100.0% | 31,463,995 | 100.0% | ||||||||||||||||||||||||
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(1) | Assumes all outstanding warrants immediately following the Closing are fully exercised. |
(2) | In addition to the 150,000 shares that the Combined Company will issue to Lincoln Park on the date of the Closing, the Combined Company will issue to Lincoln Park $1,500,000 of Combined Company common stock on the date that is 90 calendar days after the date of Closing at the purchase price equal to the arithmetic average of the last closing sale price for Combined Company common stock during the 10 consecutive business days ending on the business day immediately preceding the delivery of such shares, provided, that in no event shall the amount of such shares exceed 500,000. Upon satisfaction of certain conditions, the Combined Company may also direct Lincoln Park to purchase up to an aggregate of $50,000,000 of Combined Company common stock. |
(3) | Assumes all outstanding Apexigen Options and Apexigen Warrants are fully exercised. |
(4) | Assumes that all the shares authorized for issuance are issued. |
Q: |
FOLLOWING THE BUSINESS COMBINATION, WILL BCAC’S SECURITIES CONTINUE TO TRADE ON A STOCK EXCHANGE? |
A: | Yes. Upon the Closing, we intend to change our name from “Brookline Capital Acquisition Corp.” to “Apexigen, Inc.” and we expect that following the Closing our Common Stock and Warrants will continue to be listed on Nasdaq under the symbols “APGN” and “APGNW,” respectively. |
Q: |
WHEN AND WHERE IS THE STOCKHOLDERS’ MEETING? |
A: | The Stockholders’ Meeting will be held at [●] a.m. Eastern Time, on [●], 2022, in virtual format. BCAC stockholders may attend, vote and examine the list of BCAC stockholders entitled to vote at the Stockholders’ Meeting by visiting https://www.cstproxy.com/bcac/sm2022 and entering the control number found on their proxy card, voting instruction form or notice included in their proxy materials. In light of public health concerns regarding the coronavirus (“COVID-19”) pandemic, the Stockholders’ Meeting will be held in virtual meeting format only. You will not be able to attend the Stockholders’ Meeting physically. |
Q: |
WHAT AM I BEING ASKED TO VOTE ON AND WHY IS THIS APPROVAL NECESSARY? |
A: | The stockholders of BCAC are being asked to vote on the following: |
• | A proposal to adopt the Business Combination Agreement and the transactions contemplated thereby. See “ Proposal No. 1-The Business Combination Proposal. |
• | Two proposals to adopt the Proposed Charter in the form attached hereto as Annex B. See “ Proposal No. 2-The Charter Proposals |
• | A proposal to elect seven directors to serve on the Combined Company Board until the first annual meeting of stockholders following the effectiveness of the Proposed Charter, in the case of Class I directors, the second annual meeting of stockholders following the effectiveness of the Proposed Charter, in the case of Class II directors, and the third annual meeting of stockholders following the effectiveness of the Proposed Charter, in the case of Class III directors, and, in each case, until their respective successors are duly elected and qualified. See “ Proposal No. 3-The Director Election Proposal |
• | A proposal to approve, for purposes of complying with applicable listing rules of Nasdaq: (i) the issuance of shares of BCAC Common Stock to Apexigen stockholders pursuant to the Business Combination Agreement; (ii) the issuance of shares of BCAC Common Stock to the PIPE Investors pursuant to the Subscription Agreements; and (iii) the issuance of shares of BCAC Common Stock and Combined Company common stock to Lincoln Park pursuant to the Lincoln Park Purchase Agreement. See “ Proposal No. 4-The Nasdaq Proposal |
• | A proposal to approve and adopt the 2022 Equity Incentive Plan in the form attached hereto as Annex H. See “ Proposal No. 5-The Equity Incentive Plan Proposal |
• | A proposal to approve and adopt the 2022 Employee Stock Purchase Plan in the form attached hereto as Annex I. See “ Proposal No. 6-The ESPP Proposal |
• | A proposal to approve the adjournment of the Stockholders’ Meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event that there are insufficient votes for, or otherwise in connection with, the approval of the Business Combination Proposal, the Charter Proposals, the Director Election Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal or the ESPP Proposal. See “ Proposal No. 7-The Adjournment Proposal |
Q: |
I AM A BCAC WARRANT HOLDER. WHY AM I RECEIVING THIS PROXY STATEMENT/ PROSPECTUS? |
A: | Upon consummation of the Merger, the BCAC Warrants will, by their terms, entitle the holders to purchase shares of Combined Company common stock at a purchase price of $11.50 per share. This proxy statement/prospectus includes important information about Apexigen, the business of Apexigen and its subsidiary, and the business of the Combined Company following consummation of the Merger. As holders of BCAC warrants, you will be entitled to purchase shares of Combined Company common stock upon consummation of the Merger; BCAC urges you to read the information contained in this proxy statement/prospectus carefully. |
Q: |
WHO IS APEXIGEN? |
A: | Apexigen is a clinical-stage biopharmaceutical company focused on discovering and developing a new generation of antibody therapeutics for oncology. Since inception, Apexigen has devoted substantially all of its resources to performing research and development activities in support of its product development and licensing efforts. Apexigen has incurred net losses each year since 2010, and as of March 31, 2022, had an accumulated deficit of $153.8 million. |
• | Sotigalimab: g RIIb binding to increase cross-linking and agonistic potency and eliminate Fcg RIIIa binding to prevent antibody-dependent cell-mediated cytotoxicity (ADCC) against CD40-expressing immune cells. Apexigen believes that sotigalimab is the only CD40 agonist antibody in development that specifically binds to the CD40L binding domain, and that the combination of binding to the CD40L binding domain and the Fc mutation differentiates sotigalimab from other CD40 agonist antibodies in clinical development. These differentiators do not guarantee that sotigalimab will be proven effective or receive regulatory approval. Activation of CD40 initiates and amplifies a multi-cellular immune response, engaging components of both the innate and adaptive arms of the immune system to work in concert against cancer. As such, CD40 activation could play a fundamental role in tumor-specific immune activation. To maximize the therapeutic potential of sotigalimab, several Phase 2 trials are currently underway across multiple important cancer indications, lines of therapy and combination settings. |
• | Phase 2 preliminary data from sotigalimab in combination with chemoradiation as a neoadjuvant therapy in esophageal/gastro-esophageal junction cancer, which Apexigen plans to disclose by the end of 2022. |
• | Phase 2 preliminary data from sotigalimab in combination with standard of care chemotherapy in sarcoma is expected by year-end 2022. |
• | Apexigen plans to consult with the FDA about a potential registrational path in post-anti-PD-(L)1 melanoma in mid-2022. |
• | APX601 |
and is well-tolerated. Apexigen plans to develop APX601 for the treatment of multiple tumor indications of unmet medical need and continues to progress toward a planned mid-2022 IND application filing. |
Q: |
WHY IS BCAC PROPOSING THE BUSINESS COMBINATION? |
A: | BCAC was organized to effect a merger, capital stock exchange, asset acquisition, stock purchase, reorganization, or similar business combination with one or more businesses or entities. On February 2, 2021, BCAC completed its initial public offering of BCAC units, raising total gross proceeds of $57,500,000. On the same date, BCAC also completed sales of placement units to the Sponsor, raising total gross proceeds of $2,470,000. Since the BCAC IPO, BCAC’s activity has been limited to the evaluation of business combination candidates. |
Q: |
DID THE BCAC BOARD OBTAIN A THIRD-PARTY VALUATION OR FAIRNESS OPINION IN DETERMINING WHETHER OR NOT TO PROCEED WITH THE BUSINESS COMBINATION? |
A: | The BCAC Board did not obtain a third-party valuation or fairness opinion in connection with their determination to approve the Merger. The directors and officers of BCAC and BCAC’s advisors have substantial experience in evaluating the operating and financial merits of companies from a wide range of industries and concluded that their experience and backgrounds, together with the experience and sector expertise of BCAC’s financial advisors and consultants, enabled them to make the necessary analyses and determinations regarding the Merger. In addition, BCAC’s directors and officers and BCAC’s advisors have substantial experience with mergers and acquisitions. Accordingly, investors will be relying solely on the judgment of the BCAC Board and BCAC’s advisors in valuing Apexigen’s business. |
Q: |
WHY IS BCAC PROVIDING STOCKHOLDERS WITH THE OPPORTUNITY TO VOTE ON THE BUSINESS COMBINATION? |
A: | We are seeking approval of the Business Combination for purposes of complying with applicable Nasdaq listing rules requiring stockholder approval of issuances of more than 20% of a listed company’s issued and outstanding common stock. In addition, pursuant to the Existing Charter, we must provide all Public Stockholders with the opportunity to redeem all or a portion of their Public Shares upon the consummation of an initial business combination, either in conjunction with a tender offer or in conjunction with a stockholder vote to approve such initial business combination. If we submit the proposed initial business combination to the stockholders for their approval, our Existing Charter requires us to conduct a redemption offer in conjunction with the proxy solicitation (but not in conjunction with a tender offer) pursuant to the applicable SEC proxy solicitation rules. |
Q: |
DO APEXIGEN’S STOCKHOLDERS NEED TO APPROVE THE BUSINESS COMBINATION? |
A: | Yes. Concurrently with the execution of the Business Combination Agreement, certain stockholders of Apexigen who, in the aggregate, hold (a) at least a majority of the outstanding shares of Apexigen capital stock, voting together as a single class and (b) at least a majority of the outstanding shares of Series A-1 Preferred Stock, Series B Preferred Stock and Series C Preferred Stock of Apexigen, voting together as a single class on an as-converted basis (the “Supporting Apexigen Stockholders”) entered into a stockholder support agreement (the “Stockholder Support Agreement”) with BCAC, pursuant to which such stockholders agreed to vote, at any meeting of the stockholders of Apexigen called for the purpose of approving the Merger, and in connection with any action by written consent of the stockholders requested by Apexigen for the purposes of approving the Merger, in favor of the approval and adoption of the Merger, the Business Combination Agreement and any other transactions contemplated thereby or under any other agreements executed and delivered in connection therewith. |
Q: |
WHAT MATERIAL POSITIVE FACTORS DID THE BCAC BOARD CONSIDER IN CONNECTION WITH THE BUSINESS COMBINATION? |
A: | The BCAC Board considered a number of factors pertaining to the Business Combination. Among other things, the BCAC Board considered that Apexigen is well situated to act as a standalone public company and that Apexigen has a novel platform with the potential to exploit macro trends and for which there is the opportunity for further value creation as a public company through organic and inorganic growth, as well as a public company comparables analysis of 63 comparable companies in the oncology industry that became publicly traded companies between 2018 and 2021 with product candidates in Phase 1 or Phase 2 development to assess the value that the public markets would likely ascribe to the Combined Company following the Business Combination with BCAC. These factors are discussed in greater detail in the sections entitled “ Background of the Business Combination-The BCAC Board’s Reasons for Approval of the Business Combination Background of the Business Combination-Comparable Company Analysis.” |
Q: |
WHAT MATERIAL NEGATIVE FACTORS DID THE BCAC BOARD CONSIDER IN CONNECTION WITH THE BUSINESS COMBINATION? |
A: | The BCAC Board considered a variety of uncertainties, risks and other potentially negative factors concerning the Business Combination. Among other things, the BCAC Board weighed (i) risk that BCAC’s Public Stockholders would vote against the Business Combination Proposal or exercise Redemption Rights, (ii) certain risks related to Apexigen’s business including the risks that Apexigen may not execute on its business plan, realize its projected financial performance or be able to raise additional, required funding, (iii) risk of litigation or regulatory action, (iv) challenges associated with Apexigen being subject to the applicable disclosure and listing requirements of a publicly traded company, (v) risk associated with the minority position in Apexigen that BCAC stockholders would hold following the consummation of the Business Combination, and (vi) the fees and expenses associated with completing the Business Combination. |
Q: |
DO I HAVE REDEMPTION RIGHTS? |
A: | If you are a holder of Public Shares, you have the right to demand that BCAC redeem such shares for a pro rata portion of the cash held in the Trust Account, calculated as of two business days prior to the Closing (including interest earned on the funds held in the Trust Account and not previously released to BCAC to pay taxes) upon the Closing (“Redemption Rights”). |
Q: |
WILL MY VOTE AFFECT MY ABILITY TO EXERCISE REDEMPTION RIGHTS? |
A: | No. You may exercise your Redemption Rights whether you vote your Public Shares for or against, or whether you abstain from voting on, the Business Combination Proposal or any other Proposal described in this proxy statement/prospectus. As a result, the Business Combination Proposal can be approved by stockholders who will redeem their Public Shares and no longer remain stockholders and the Merger may be consummated even though the funds available from the Trust Account and the number of public stockholders are substantially reduced as a result of redemptions by Public Stockholders. |
Q: |
HOW DO I EXERCISE MY REDEMPTION RIGHTS? |
A: | If you are a holder of Public Shares and wish to exercise your Redemption Rights, you must demand that BCAC redeem your shares for cash no later than the second business day preceding the vote on the Business Combination Proposal by delivering your stock to BCAC’s transfer agent physically or electronically using Continental Stock Transfer & Trust Company’s DWAC (Deposit and Withdrawal at Custodian) system. Any holder of Public Shares will be entitled to demand that such holder’s shares be redeemed for a pro rata portion of the amount then in the Trust Account (which, for illustrative purposes, was approximately $[●], or $[●] per share, as of [●], 2022, the Record Date). Such amount, including interest earned on the funds held in the Trust Account and not previously released to BCAC to pay its taxes, will be paid promptly upon consummation of the Merger. However, under Delaware law, the proceeds held in the Trust Account could be subject to claims that could take priority over those of Public Stockholders exercising Redemption Rights, regardless of whether such holders vote for or against the Business Combination Proposal. Therefore, the per-share distribution from the Trust Account in such a situation may be less than originally anticipated due to such claims. Your vote on any Proposal will have no impact on the amount you will receive upon exercise of your Redemption Rights. |
Q: |
WHAT ARE THE U.S. FEDERAL INCOME TAX CONSEQUENCES OF EXERCISING MY REDEMPTION RIGHTS? |
A: | It is expected that a U.S. Holder (as defined in “Material U.S. Federal Income Tax Considerations”) that exercises its Redemption Rights to receive cash from the Trust Account in exchange for its Public Shares will generally be treated as selling such Public Shares resulting in the recognition of capital gain or capital loss. There may be certain circumstances, however, in which the redemption may be treated as a distribution for U.S. federal income tax purposes depending on the amount of BCAC Common Stock that such U.S. Holder owns or is deemed to own. For a more complete discussion of the material U.S. federal income tax considerations for holders of Public Shares with respect to the exercise of Redemption Rights, see “ Material U.S. Federal Income Tax Considerations—Material Tax Considerations with respect to a Redemption of Public Shares |
Q: |
HOW DO THE PUBLIC WARRANTS DIFFER FROM THE PRIVATE PLACEMENT WARRANTS AND WHAT ARE THE RELATED RISKS FOR ANY PUBLIC WARRANT HOLDERS POST BUSINESS COMBINATION? |
A: | The Public Warrants are identical to the Private Placement warrants in material terms and provisions, except that the Private Placement Warrants will not be transferable, assignable or salable until 30 days after the Closing (except in limited circumstances) and will not be redeemable by BCAC so long as they are held by the initial stockholders or any of their permitted transferees. If the Private Placement Warrants are held by holders other than the initial stockholders or any of their permitted transferees, they will be redeemable by BCAC and exercisable by the holders on the same basis as the Public Warrants. The initial stockholders agreed not to transfer, assign or sell any of the Private Placement Warrants, including the common stock issuable upon exercise of such warrants (except to certain permitted transferees), until 30 days after the Closing. |
Q: |
DO I HAVE APPRAISAL RIGHTS IF I OBJECT TO THE PROPOSED BUSINESS COMBINATION? |
A: | No. Neither BCAC stockholders nor its unit or warrant holders have appraisal rights in connection with the Business Combination under the DGCL. Under the DGCL, however, holders of Apexigen capital stock may be entitled to appraisal rights in connection with the Business Combination. See “ Meeting of BCAC Stockholders- Appraisal Rights |
Q: |
WHAT HAPPENS TO THE FUNDS DEPOSITED IN THE TRUST ACCOUNT AFTER CONSUMMATION OF THE BUSINESS COMBINATION? |
A: | After the April Partial Redemption (as defined herein), a total of approximately $51.1 million remains of the $58.1 million in net proceeds of the BCAC IPO and a portion of the amount raised from the sale of the private placement units that occurred simultaneously with the consummation of the BCAC IPO and which were placed in the Trust Account following the BCAC IPO. Such amount in the Trust Account has been accruing interest from which BCAC is entitled to make withdrawals to make tax payments. In addition, in connection with the approval of the Extension Amendment, the Sponsor has agreed to contribute the Additional Contributions. After consummation of the Merger, the funds in the Trust Account will be used to pay holders of the Public Shares who exercise Redemption Rights, to pay fees and expenses incurred in connection with the Business Combination and for the Combined Company’s working capital and general corporate purposes. |
Q: |
HOW DOES THE SPONSOR INTEND TO VOTE ON THE PROPOSALS? |
A: | As of [●], 2022, the Record Date, the Sponsor was entitled to vote an aggregate of 1,627,000 shares of BCAC Common Stock, consisting of Founder Shares that were issued prior to the BCAC IPO and shares that are included as a constituent part of the placement units that were issued simultaneously with the BCAC IPO (“BCAC Voting Shares”). Such shares currently constitute approximately 24.1% of the outstanding shares of BCAC’s common stock. Concurrently with the execution of the Business Combination Agreement, the Sponsor entered into the Sponsor Support Agreement with BCAC and Apexigen, pursuant to which the Sponsor agreed, at any meeting of BCAC stockholders and in connection with any action by written consent of the stockholders of BCAC, to (i) appear or cause all shares or other voting securities of BCAC it holds, owns, or is entitled to vote, whether as shares or as a constituent part of a unit of securities to be counted present for quorum purposes, (ii) vote (or execute an action by written consent) or cause to be voted (A) in favor of the Business Combination Agreement, the Merger, and any other transactions |
contemplated by the Business Combination Agreement, (B) against any action, agreement or transaction or proposal that would result in a breach of the Business Combination Agreement or that would reasonably be expected to result in a failure to consummate the Merger, (C) in favor of the proposals and any other matters necessary or reasonably requested by BCAC for the consummation of the Business Combination, (D) against any business combination proposal other than with Apexigen and any other action that would reasonably be expected to materially impede, delay, or adversely affect the Business Combination or result in a breach of any obligation or agreement of the Sponsor contained in the Sponsor Support Agreement. |
Q: |
WHAT CONSTITUTES A QUORUM AT THE STOCKHOLDERS’ MEETING? |
A: | A quorum of BCAC stockholders is necessary to hold a valid meeting. A quorum will be present at the Stockholders’ Meeting if a majority of the voting power of all outstanding shares of BCAC Common Stock entitled to vote at the Stockholders’ Meeting as of the Record Date is represented in person (which would include presence at a virtual meeting) or by proxy. Abstentions and broker non-votes will be counted as present for the purpose of determining a quorum. The Sponsor, which currently owns approximately 24.1% of the issued and outstanding shares of BCAC Common Stock, will count towards this quorum. As of [●], 2022, the Record Date, 3,373,047 shares of BCAC Common Stock would be required to achieve a quorum. |
Q: |
WHAT VOTE IS REQUIRED TO APPROVE EACH PROPOSAL AT THE STOCKHOLDERS’ MEETING? |
A: | The Business Combination Proposal non-vote with regard to the Business Combination Proposal, will have no effect on the Business Combination Proposal. BCAC stockholders must approve the Business Combination Proposal in order for the Merger to occur. |
Q: |
DO ANY OF BCAC’S DIRECTORS OR OFFICERS HAVE INTERESTS IN THE BUSINESS COMBINATION THAT MAY DIFFER FROM OR BE IN ADDITION TO THE INTERESTS OF BCAC STOCKHOLDERS? |
A: | Certain of BCAC’s executive officers and certain non-employee directors may have interests in the Merger that may be different from, or in addition to, the interests of BCAC stockholders generally. |
• | If the Business Combination with Apexigen or another business combination is not consummated within the Completion Window, BCAC will cease all operations except for the purpose of winding up, redeeming 100% of the outstanding Public Shares for cash and, subject to the approval of its remaining stockholders and the BCAC Board, dissolving and liquidating. In such event, the 1,437,500 Founder Shares held by the Sponsor, the underwriter of BCAC’s initial public offering, and certain of the underwriter’s employees, which were acquired for a purchase price of approximately $0.017 per share, would be worthless because holders of the Founder Shares are not entitled to participate in any redemption or distribution with respect to such shares. The Founder Shares had an aggregate market value of $[●] based upon the closing price of $[●] per share of BCAC Common Stock on the Nasdaq on the Record Date, of which the 1,380,000 Founder Shares held by the Sponsor had an aggregate market value of $[●]. Each of BCAC’s directors is a member of the Sponsor, and therefore will have an economic interest in the Founder Shares held by the Sponsor. |
• | Given the differential in the purchase price that our Sponsor paid for the Founder Shares as compared to the price of the BCAC units sold in the BCAC IPO and the substantial number of shares of Combined Company common stock that our Sponsor will receive upon conversion of the Founder Shares in connection with the Business Combination, our Sponsor and its affiliates may earn a positive rate of return on their investment even if the Combined Company common stock trades below the price initially paid for the BCAC units in the BCAC IPO and the Public Stockholders experience a negative rate of return following the completion of the Business Combination. Thus, our Sponsor and its affiliates may have more of an economic incentive for us to, rather than liquidate if we fail to complete our initial business combination by the Completion Window, enter into an initial business combination on potentially less favorable terms with a potentially less favorable, riskier, weaker-performing or financially unstable business, or an entity lacking an established record of revenues or earnings, than would be the case if such parties had paid the full offering price for their Founder Shares. |
• | The Sponsor purchased an aggregate of 247,000 placement units from BCAC for an aggregate purchase price of $2,470,000 (or $10.00 per unit). This purchase took place on a private placement basis simultaneously with the consummation of the BCAC IPO. A portion of the proceeds BCAC received from this purchase were placed in the Trust Account. Such units had an aggregate market value of approximately $[●] based upon the closing price of $[●] per unit on the Nasdaq on [●], 2022, the Record Date. The placement units will become worthless if BCAC does not consummate a business combination within the Completion Window. |
• | Samuel Wertheimer will become a director of the Combined Company after the Closing. As such, in the future he may receive any cash fees, stock options or stock awards that the Combined Company Board determines to pay to its directors. |
• | BCAC’s directors and officers, and their affiliates are entitled to reimbursement of out-of-pocket |
• | In connection with the approval of the Extension Amendment (as defined below), the Sponsor has agreed to contribute to BCAC as a loan the Additional Contributions. The amount of the Additional Contributions will not bear interest and will be repayable by BCAC to the Sponsor upon Closing. |
• | The continued indemnification of current directors and officers and the continuation of directors’ and officers’ liability insurance. |
• | In the event of the liquidation of the Trust Account, the Sponsor has agreed to indemnify and hold harmless BCAC against any and all losses, liabilities, claims, damages and expenses to which BCAC may become subject as a result of any claim by (i) any third party for services rendered or products sold to BCAC or (ii) a prospective target business with which BCAC has entered into an acquisition agreement, provided that such indemnification of BCAC by the Sponsor shall apply only to the extent necessary to ensure that such claims by a third party for services rendered or products sold to BCAC or a target do not reduce the amount of funds in the Trust Account to below (i) $10.00 per share of BCAC Common Stock or (ii) such lesser amount per share of BCAC Common Stock held in the Trust Account due to reductions in the value of the trust assets as of the date of the liquidation of the Trust Account, in each case, net of the amount of interest earned on the property in the Trust Account, which may be withdrawn to pay taxes and expenses related to the administration of the Trust Account, except |
as to any claims by a third party (including a target) who executed a waiver of any and all rights to seek access to the Trust Account and except as to any claims under BCAC’s indemnity of the underwriters of the BCAC IPO against certain liabilities, including liabilities under the Securities Act. If BCAC consummates the Business Combination, on the other hand, BCAC will be liable for all such claims. |
• | The Sponsor has agreed not to transfer, assign, or sell (i) 50% of its Founder Shares until the earlier of (A) six months after the date of the consummation of the Business Combination or (B) the date on which the closing price of BCAC Common Stock equals or exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing after the Business Combination, and (ii) the remaining 50% of the Founder Shares until six months following the consummation of the Business Combination, subject to certain customary exceptions. |
• | Subject to certain limited exceptions, the placement units will not be transferable until 30 days following the completion of the Business Combination. |
• | For a period of six years after the Closing Date, BCAC shall defend, indemnify and hold harmless the Sponsor, its affiliates, and their respective present and former directors and officers against any costs or expenses, judgments, fines, losses, claims, damages or liabilities incurred in connection with any action by any stockholder of BCAC who has not exercised Redemption Rights arising from Sponsor’s ownership of equity securities of BCAC, or its control or ability to influence BCAC, and further arising out of or pertaining to the transactions, actions, and investments contemplated by the Business Combination Agreement or any Ancillary Agreements. |
• | BCAC will pay Brookline Capital Markets, a division of Arcadia Securities, LLC (“Brookline Capital Markets”), and an affiliate of our Sponsor for which certain of our officers provide services, $200,000 to act as BCAC’s financial advisor, investment banker, and consultant in connection with the Business Combination. The services provided by Brookline Capital Markets included assessment of the market environment as well as BCAC’s relative positioning within the marketplace, assessment of BCAC’s stockholder base, potential target investors and potential marketing strategies for its securities, assistance in the preparation of marketing materials for BCAC, and other customary financial advisory services and investment banking services in connection with BCAC’s contemplated business combination transaction. While Brookline Capital Markets provided assistance to BCAC in the preparation of our initial terms proposed to Apexigen, it did not otherwise participate in any discussions among the parties. |
• | In the event that the BCAC Related Funds Amount at Closing is less than $20,000,000, then that number of Sponsor Shares equal to (x) one minus the quotient of the BCAC Related Funds Amount divided by $20,000,000, multiplied by (y) 1/3 of the total number of Sponsor Shares, shall be deemed automatically forfeited and cancelled without any further actions by the Sponsor or any other person, and such surrendered shares will be recorded as cancelled by the Combined Company. |
Q: |
WHAT DO I NEED TO DO NOW? |
A: | BCAC urges you to carefully read and consider the information contained in this proxy statement/prospectus, including the annexes and the other documents referred to herein, and to consider how the Merger will affect you as a stockholder and/or warrant holder of BCAC. Stockholders should then vote as soon as possible in accordance with the instructions provided in this proxy statement/prospectus and on the enclosed proxy card. |
Q: |
WHAT HAPPENS IF I SELL MY SHARES OF BCAC COMMON STOCK BEFORE THE STOCKHOLDERS’ MEETING? |
A: | The Record Date for the Stockholders’ Meeting is earlier than the date that the Business Combination is expected to be completed. If you transfer your shares of BCAC Common Stock after the Record Date, but before the Stockholders’ Meeting, unless the transferee obtains from you a proxy to vote those shares, you will retain your right to vote at the Stockholders’ Meeting. However, you will not be able to seek redemption of your shares of BCAC Common Stock because you will no longer be able to tender them prior to the Stockholders’ Meeting in accordance with the provisions described herein. If you transferred your shares of BCAC Common Stock prior to the Record Date, you have no right to vote those shares at the Stockholders’ Meeting or redeem those shares for a pro rata portion of the proceeds held in the Trust Account. |
Q: |
HOW DO I VOTE? |
A: | If you are a holder of record of BCAC Common Stock on the Record Date, you may vote in person (which would include presence at a virtual meeting) at the Stockholders’ Meeting or by submitting a proxy for the Stockholders’ Meeting. You may submit your proxy by completing, signing, dating, and returning the enclosed proxy card in the accompanying pre-addressed postage paid envelope. If you hold your shares in “street name,” which means your shares are held of record by a broker, bank or nominee, you should contact your broker to ensure that votes related to the shares you beneficially own are properly counted. In this regard, you must provide the broker, bank or nominee with instructions on how to vote your shares or, if you wish to attend the meeting and vote in person (which would include presence at a virtual meeting), obtain a proxy from your broker, bank or nominee. |
Q: |
IF MY SHARES ARE HELD IN “STREET NAME” BY A BROKER, BANK OR OTHER NOMINEE, WILL MY BROKER, BANK OR OTHER NOMINEE VOTE MY SHARES FOR ME? |
A: | If your shares are held in “street name” in a stock brokerage account or by a broker, bank, or other nominee, you must provide the record holder of your shares with instructions on how to vote your shares. Please follow the voting instructions provided by your broker, bank, or other nominee. Please note that you may not vote shares held in “street name” by returning a proxy card directly to BCAC or by voting in person (which would include presence at a virtual meeting) at the Stockholders’ Meeting unless you provide a “legal proxy,” which you must obtain from your broker, bank or other nominee. |
Q: |
WHAT IF I ATTEND THE STOCKHOLDERS’ MEETING AND ABSTAIN OR DO NOT VOTE? |
A: | For purposes of the Stockholders’ Meeting, an abstention occurs when a stockholder attends the meeting in person (which would include presence at a virtual meeting) and does not vote or returns a proxy with an “abstain” vote. |
Q: |
WHAT WILL HAPPEN IF I RETURN MY PROXY CARD WITHOUT INDICATING HOW TO VOTE? |
A: | If you sign and return your proxy card without indicating how to vote on any particular proposal, the BCAC Common Stock represented by your proxy will be voted “ FOR |
Q: |
MAY I CHANGE MY VOTE AFTER I HAVE MAILED MY SIGNED PROXY CARD? |
A: | Yes. You may change your vote at any time before your proxy is exercised by doing any one of the following: |
• | sending another proxy card with a later date; |
• | notifying BCAC’s Secretary in writing before the Stockholders’ Meeting that you have revoked your proxy; or |
• | attending the Stockholders’ Meeting and voting electronically by visiting https://www.cstproxy.com/bcac/sm2022 and entering the control number found on your proxy card, instruction form or notice you previously received. Attendance at the Stockholders’ Meeting will not, in and of itself, revoke a proxy. |
Q: |
WHAT HAPPENS IF I FAIL TO TAKE ANY ACTION WITH RESPECT TO THE STOCKHOLDERS’ MEETING? |
A: | If you fail to take any action with respect to the Stockholders’ Meeting and the Merger is approved by stockholders and consummated, you will become a stockholder or warrant holder, as applicable, of the Combined Company. Failure to take any action with respect to the Stockholders’ Meeting will not affect your ability as a stockholder to exercise your Redemption Rights prior to the Stockholders’ Meeting in accordance with the procedures set forth in this proxy statement/prospectus. If you fail to take any action with respect to the Stockholders’ Meeting and the Merger is not approved, you will continue to be a stockholder and/or warrant holder of BCAC while BCAC searches for another target business with which to complete a business combination. |
Q: |
WHAT SHOULD I DO IF I RECEIVE MORE THAN ONE SET OF VOTING MATERIALS? |
A: | Stockholders may receive more than one set of voting materials, including multiple copies of this proxy statement/prospectus and multiple proxy cards or voting instruction cards. For example, if you hold your shares of BCAC Common Stock in more than one brokerage account, you will receive a separate voting instruction card for each brokerage account in which you hold shares. If you are a holder of record and your shares of BCAC Common Stock are registered in more than one name, you will receive more than one proxy card. Please complete, sign, date and return each proxy card and voting instruction card that you receive in order to cast a vote with respect to all of your shares of BCAC Common Stock. |
Q: |
WHO CAN HELP ANSWER MY QUESTIONS? |
A: | If you have questions about the Merger or if you need additional copies of the proxy statement/prospectus or the enclosed proxy card you should contact: |
• | each issued and outstanding share of Apexigen capital stock (including shares of capital stock that are issued and outstanding immediately prior to the Effective Time resulting from the conversion or exercise of shares of the Apexigen Preferred Stock, Apexigen Warrants, and Apexigen Options, but excluding any dissenting shares) will be converted into the right to receive a number of shares of BCAC Common Stock equal to the Exchange Ratio; |
• | each share of capital stock of Apexigen held in the treasury of Apexigen shall be canceled without any conversion thereof and no payment or distribution shall be made with respect thereto; |
• | each Apexigen Option that is outstanding immediately prior to the Effective Time, whether vested or unvested, will be assumed by BCAC and converted into a BCAC Option on substantially the same vesting and exercisability terms and conditions as such Apexigen Options, except that (i) such BCAC Option will represent the right to purchase that whole number of shares of BCAC Common Stock (rounded down to the nearest whole share) equal to the product of the number of shares of Apexigen Common Stock subject to such Apexigen Option multiplied by the Exchange Ratio, and (ii) the exercise price per share for each such BCAC Option will be equal to the quotient of (A) the exercise price per share of such Apexigen Option in effect immediately prior to the Effective Time, divided by (B) the Exchange Ratio (the exercise price per share, as so determined, being rounded up to the nearest full cent); and |
• | each Apexigen Warrant that is issued and outstanding immediately prior to the Effective Time will be treated in accordance with the terms thereof, as may be amended prior to the Effective Time by Apexigen and the holder thereof with the consent of BCAC. |
• | The Business Combination Proposal |
• | The Charter Proposals |
• | The Director Election Proposal |
• | The Nasdaq Proposal |
• | The Equity Incentive Plan Proposal |
• | The ESPP Proposal |
• | The Adjournment Proposal |
• | If the Business Combination with Apexigen or another business combination is not consummated within the Completion Window, BCAC will cease all operations except for the purpose of winding up, redeeming 100% of the outstanding Public Shares for cash and, subject to the approval of its remaining stockholders |
and the BCAC Board, dissolving and liquidating. In such event, the 1,380,000 Founder Shares held by the Sponsor, and the 57,500 Representative Shares, which were acquired for a purchase price of approximately $0.017 per share, would be worthless because holders of the Founder Shares are not entitled to participate in any redemption or distribution with respect to such shares. The Founder Shares held by the Sponsor had an aggregate market value of $[●] based upon the closing price of $[●] per share of BCAC Common Stock on the Nasdaq on the Record Date. Each of BCAC’s directors are a member of the Sponsor, and therefore will have an economic interest in the Founder Shares held by the Sponsor. |
• | Given the differential in the purchase price that our Sponsor paid for the Founder Shares as compared to the price of the BCAC units sold in the BCAC IPO and the substantial number of shares of Combined Company common stock that our Sponsor will receive upon conversion of the Founder Shares in connection with the Business Combination, our Sponsor and its affiliates may earn a positive rate of return on their investment even if the Combined Company common stock trades below the price initially paid for the BCAC units in the BCAC IPO and the Public Stockholders experience a negative rate of return following the completion of the Business Combination. Thus, our Sponsor and its affiliates may have more of an economic incentive for us to, rather than liquidate if we fail to complete our initial business combination by the Completion Window, enter into an initial business combination on potentially less favorable terms with a potentially less favorable, riskier, weaker-performing or financially unstable business, or an entity lacking an established record of revenues or earnings, than would be the case if such parties had paid the full offering price for their Founder Shares. |
• | The Sponsor purchased an aggregate of 247,000 placement units from BCAC for an aggregate purchase price of $2,470,000 (or $10.00 per unit). This purchase took place on a private placement basis simultaneously with the consummation of the BCAC IPO. A portion of the proceeds BCAC received from this purchase were placed in the Trust Account. Such units had an aggregate market value of approximately $[●] based upon the closing price of $[●] per warrant on the Nasdaq on [●], 2022, the Record Date. |
• | In connection with the approval of the Extension Amendment (as defined below), the Sponsor has agreed to contribute to BCAC as a loan the Additional Contributions. The amount of the Additional Contributions will not bear interest and will be repayable by BCAC to the Sponsor upon Closing. |
• | Samuel Wertheimer will become a director of the Combined Company after the Closing. As such, in the future he may receive any cash fees, stock options or stock awards that the Combined Company Board determines to pay to its directors. |
• | BCAC’s directors and officers, and their affiliates are entitled to reimbursement of out-of-pocket |
• | Article X of the Existing Charter provides for the limited waiver, to the extent allowed by law and subject to certain exceptions, of the doctrine of corporate opportunity with respect to BCAC or any of its officers, directors or their respective affiliates. While this may result in a potential conflict of interest as between the fiduciary duties or contractual obligations of our officers or directors and the interests of BCAC and its stockholders, it did not impact our search for an initial business combination target, including Apexigen. |
• | The continued indemnification of current directors and officers and the continuation of directors’ and officers’ liability insurance. |
• | In the event of the liquidation of the Trust Account, the Sponsor has agreed to indemnify and hold harmless BCAC against any and all losses, liabilities, claims, damages and expenses to which BCAC may become subject as a result of any claim by (i) any third party for services rendered or products sold to BCAC or (ii) a prospective target business with which BCAC has entered into an acquisition agreement, provided that such indemnification of BCAC by the Sponsor shall apply only to the extent necessary to ensure that such claims by a third party for services rendered or products sold to BCAC or a target do not reduce the amount of funds in the Trust Account to below (i) $10.00 per share of BCAC Common Stock or (ii) such lesser amount per share of BCAC Common Stock held in the Trust Account due to reductions in the value of the trust assets as of the date of the liquidation of the Trust Account, in each case, net of the amount of interest earned on the property in the Trust Account, which may be withdrawn to pay taxes and expenses related to the administration of the Trust Account, except as to any claims by a third party (including a target) who executed a waiver of any and all rights to seek access to the Trust Account and except as to any claims under BCAC’s indemnity of the underwriters of the BCAC IPO against certain liabilities, including liabilities under the Securities Act. If BCAC consummates the Business Combination, on the other hand, BCAC will be liable for all such claims. |
• | The Sponsor has agreed not to transfer, assign, or sell any of its Founder Shares until 180 days following the consummation of the Business Combination, subject to certain customary exceptions. |
• | Subject to certain limited exceptions, the placement units will not be transferable until 30 days following the completion of the Business Combination. |
• | For a period of six years after the Closing Date, BCAC shall defend, indemnify and hold harmless the Sponsor, its affiliates, and their respective present and former directors and officers against any costs or expenses, judgments, fines, losses, claims, damages or liabilities incurred in connection with any action by any stockholder of BCAC who has not exercised Redemption Rights arising from Sponsor’s ownership of equity securities of BCAC, or its control or ability to influence BCAC, and further arising out of or pertaining to the transactions, actions, and investments contemplated by the Business Combination Agreement or any Ancillary Agreements. |
• | BCAC will pay Brookline Capital Markets, an affiliate of our Sponsor for which certain of our officers provide services, $200,000 to act as BCAC’s financial advisor, investment banker, and consultant in connection with the Business Combination. The services provided by Brookline Capital Markets included assessment oif the market environment as well as BCAC’s relative positioning within the marketplace, assessment of BCAC’s stockholder base, potential target investors and potential marketing strategies for its securities, assistance in the preparation of marketing materials for BCAC, and other customary financial advisory services and investment banking services in connection with BCAC’s contemplated business combination transaction. While Brookline Capital Markets provided assistance to BCAC in the preparation of our initial terms proposed to Apexigen, it did not otherwise participate in any discussions among the parties. |
• | In the event that the BCAC Related Funds Amount at Closing is less than $20,000,000, then that number of Sponsor Shares equal to (x) one minus the quotient of the BCAC Related Funds Amount divided by $20,000,000, multiplied by (y) 1/3 of the total number of Sponsor Shares, shall be deemed automatically forfeited and cancelled without any further actions by the Sponsor or any other person, and such surrendered shares will be recorded as cancelled by the Combined Company. |
• | Apexigen is in the early stages of clinical drug development and has a limited operating history and no products approved for commercial sale. |
• | Apexigen has incurred net losses since inception and expects to continue to incur significant net losses for the foreseeable future. |
• | The Combined Company will require substantial additional capital to finance operations. If the Combined Company is unable to raise such capital when needed or on acceptable terms, it may be forced to delay, reduce, and/or eliminate one or more research and drug development programs or future commercialization efforts. |
• | Apexigen is dependent on the success of its product candidates, including its lead product candidate, sotigalimab, which is currently in multiple clinical trials . |
• | The clinical trials of our current and any future product candidates of Apexigen may not demonstrate safety and efficacy to the satisfaction of regulatory authorities or otherwise be timely conducted or produce positive results. |
• | If Apexigen’s competitors develop and market products that are more effective, safer, or less expensive than its product candidates, Apexigen will be negatively impacted. |
• | If Apexigen experience delays or difficulties in the enrollment of patients in clinical trials, its receipt of necessary marketing approvals could be delayed or prevented. |
• | The regulatory approval processes of the Federal Drug Administration, European Medicines Agency, and comparable foreign regulatory authorities are lengthy, time-consuming, and inherently unpredictable. If Apexigen is ultimately unable to obtain regulatory approval for its product candidates, it will be unable to generate product revenue and its business will be substantially harmed. |
• | If Apexigen is unable to obtain, maintain, enforce, or protect its intellectual property rights in any products it develops or in its technology, if the scope of the intellectual property protection obtained is not sufficiently broad, or if Apexigen infringes the intellectual property rights of others, third parties could develop and commercialize products and technology similar or identical to those of Apexigen, Apexigen could be prevented from commercializing its products and Apexigen may not be able to compete effectively in its markets. |
• | The Public Stockholders will experience immediate dilution as a consequence of the issuance of the Combined Company common stock as consideration in the Business Combination and in connection with the issuance of shares to Lincoln Park at the Closing pursuant to its financing arrangement, and will experience additional dilution following the Closing in the event of future issuances pursuant to the 2022 Equity Incentive Plan and the 2022 Employee Stock Purchase Plan, the issuance of shares of Combined Company common stock to Lincoln Park in connection with the financing arrangement (both through the obligation to issue additional shares 90 days after the Closing and pursuant to any subsequent requests for funding made by Apexigen), the exercise of outstanding Apexigen Options and Apexigen Warrants, and the exercise of the Public Warrants, the Private Placement Warrants and the PIPE Warrants. |
• | The market price of shares of Combined Company common stock after the Business Combination may be affected by factors different from those currently affecting the prices of shares of BCAC Common Stock. |
• | BCAC has not obtained an opinion from an independent investment banking firm, and consequently, there is no assurance from an independent source that the merger consideration is fair to its stockholders from a financial point of view. |
• | If the Business Combination’s benefits do not meet the expectations of financial analysts, the market price of Combined Company common stock may decline. |
• | There can be no assurance that the Combined Company common stock will be approved for listing on Nasdaq or that the Combined Company will be able to comply with the continued listing standards of Nasdaq. |
• | The consummation of the Business Combination is subject to a number of conditions and if those conditions are not satisfied or waived, the Business Combination Agreement may be terminated in accordance with its terms and the Business Combination may not be completed. |
• | The parties to the Business Combination Agreement may amend the terms of the Business Combination Agreement or waive one or more of the conditions to the Business Combination, and the exercise of discretion by our directors and officers in agreeing to changes to the terms of or waivers of closing conditions in the Business Combination Agreement may result in a conflict of interest when determining whether such changes to the terms of the Business Combination Agreement or waivers of conditions are appropriate and in the best interests of our stockholders. |
• | Termination of the Business Combination Agreement could negatively impact Apexigen and BCAC. |
• | The unaudited pro forma condensed combined financial information included in this proxy statement/ prospectus is preliminary and the actual financial condition and results of operations after the Business Combination may differ materially. |
• | If third parties bring claims against BCAC, the proceeds held in the Trust Account could be reduced and the per share redemption amount received by stockholders may be less than $10.00 per share. |
• | Our independent directors may decide not to enforce the indemnification obligations of our Sponsor, resulting in a reduction in the amount of funds in the Trust Account available for distribution to our Public Stockholders. |
• | If Public Stockholders fail to comply with the redemption requirements specified in this proxy statement/ prospectus, they will not be entitled to redeem their Public Shares for a pro rata portion of the funds held in the Trust Account. |
• | Unlike some other blank check companies, BCAC is not subject to a specified maximum redemption threshold. The absence of such a redemption threshold will make it easier for BCAC to consummate the Business Combination even if a substantial number of our stockholders redeem. |
• | Sotigalimab: c ã c ã |
• | Phase 2 preliminary data from sotigalimab in combination with chemoradiation as a neoadjuvant therapy in esophageal/gastro-esophageal junction cancer, which Apexigen plans to disclose by the end of 2022. |
• | Phase 2 preliminary data from sotigalimab in combination with standard of care chemotherapy in sarcoma is expected by year-end 2022. |
• | Apexigen plans to consult with the FDA about a potential registrational path in post-anti-PD-(L)1 melanoma in mid-2022. |
• | APX601 a mid-2022 IND application filing. |
For the period from May 27, 2020 (inception) through December 31, 2020 |
For the year ended December 31, 2021 |
For the three months ended March 31, |
||||||||||||||
2021 |
2022 |
|||||||||||||||
(in thousands, except per share data) |
||||||||||||||||
General and administrative expenses |
$ | 2 | $ | 411 | $ | 82 | $ | 2,407 | ||||||||
Administrative expenses—related party |
— | 110 | 20 | 30 | ||||||||||||
Franchise tax expense |
— | 82 | 21 | 20 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Loss from operations |
(2 | ) | (603 | ) | (123 | ) | (2,457 | ) | ||||||||
Other income (expense) |
||||||||||||||||
Change in fair value of derivative warrant liabilities |
— | 110 | (49 | ) | (3 | ) | ||||||||||
Offering costs allocated to private warrants |
(1 | ) | ||||||||||||||
Net gain from investments held in Trust Account |
— | 10 | 2 | 2 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total other income (expense) |
— | 119 | (47 | ) | (1 | ) | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Net loss |
$ | (2 | ) | $ | (484 | ) | $ | (170 | ) | $ | (2,458 | ) | ||||
|
|
|
|
|
|
|
|
|||||||||
Weighted average shares outstanding—redeemable common stock |
— | 5,245,890 | 3,705,556 | 5,750,000 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Basic and diluted net loss per share, redeemable common stock |
$ | — | $ | (0.07 | ) | $ | (0.03 | ) | $ | (0.33 | ) | |||||
|
|
|
|
|
|
|
|
|||||||||
Weighted average shares outstanding—non-redeemable common stock |
1,250,000 | 1,646,407 | 1,530,011 | 1,684,500 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Basic and diluted net loss per share, non-redeemable common stock |
$ | (0.00 | ) | $ | (0.07 | ) | $ | (0.03 | ) | $ | (0.33 | ) | ||||
|
|
|
|
|
|
|
|
As of December 31, |
March 31, |
|||||||||||
2020 |
2021 |
2022 |
||||||||||
(in thousands) |
||||||||||||
Balance Sheet Data: |
||||||||||||
Total assets |
$ | 97 | $ | 58,316 | $ | 58,279 | ||||||
Total liabilities |
73 | 236 | 2,656 | |||||||||
Common stock subject to possible redemption |
5 | 58,075 | 58,075 | |||||||||
Total stockholders’ equity (deficit) |
24 | 45 | (2,453 | ) |
Years Ended December 31, |
Three Months Ended March 31, |
|||||||||||||||
2020 |
2021 |
2021 |
2022 |
|||||||||||||
(In thousands, except share and per share data) | ||||||||||||||||
Statement of Operations Data: |
||||||||||||||||
Operating expenses |
||||||||||||||||
Research and development |
$ | 18,770 | $ | 21,664 | $ | 4,963 | $ | 7,108 | ||||||||
General and administrative |
5,774 | 7,293 | 1,539 | 1,986 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total operating expenses |
24,544 | 28,957 | 6,502 | 9,094 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Loss from operations |
(24,544 | ) | (28,957 | ) | (6,502 | ) | (9,094 | ) | ||||||||
Interest income, net |
421 | 41 | 15 | 52 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Net loss |
$ | (24,123 | ) | $ | (28,916 | ) | $ | (6,487 | ) | $ | (9,042 | ) | ||||
|
|
|
|
|
|
|
|
|||||||||
Net loss per share, basic and diluted |
$ | (0.79 | ) | $ | (0.94 | ) | $ | (0.21 | ) | $ | (0.29 | ) | ||||
Weighted average common shares outstanding, basic and diluted |
30,512,368 | 30,901,032 | 30,651,063 | 31,395,518 |
As of December 31, |
As of March 31, 2022 |
|||||||||||
2020 |
2021 |
|||||||||||
(In thousands) | ||||||||||||
Balance Sheet Data: |
||||||||||||
Total assets |
$ | 62,845 | $ | 39,096 | $ | 30,507 | ||||||
Total liabilities |
13,162 | 17,095 | 18,012 | |||||||||
Convertible preferred stock |
158,707 | 158,707 | 158,707 | |||||||||
Total stockholders’ deficit |
(109,024 | ) | (136,706 | ) | (145,275 | ) |
• | Assuming No Additional Redemptions: |
• | Assuming 50% Redemptions: |
• | Assuming 75% Redemptions: |
• | Assuming Maximum Redemptions: |
Pro Forma Combined |
||||||||||||||||||||||||||||||||
No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
|||||||||||||||||||||||||||||
Shares |
% |
Shares |
% |
Shares |
% |
Shares |
% |
|||||||||||||||||||||||||
BCAC Public Stockholders (1) |
5,061,592 | 19.1 | % | 2,530,796 | 10.6 | % | 1,265,398 | 5.6 | % | — | 0.0 | % | ||||||||||||||||||||
Sponsor and Representative (2) |
1,684,500 | 6.4 | % | 1,684,500 | 7.0 | % | 1,510,020 | 6.7 | % | 1,224,500 | 5.8 | % | ||||||||||||||||||||
Former Apexigen equityholders (3) |
18,104,074 | 68.2 | % | 18,104,074 | 75.5 | % | 18,104,074 | 80.3 | % | 18,104,074 | 86.3 | % | ||||||||||||||||||||
PIPE Investors (4) |
1,502,000 | 5.7 | % | 1,502,000 | 6.3 | % | 1,502,000 | 6.7 | % | 1,502,000 | 7.2 | % | ||||||||||||||||||||
Lincoln Park (5) |
150,000 | 0.6 | % | 150,000 | 0.6 | % | 150,000 | 0.7 | % | 150,000 | 0.7 | % | ||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Pro forma total shares of the Combined Company common stock outstanding at Closing |
26,502,166 | 100.0 | % | 23,971,370 | 100.0 | % | 22,531,492 | 100.0 | % | 20,980,574 | 100.0 | % | ||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) | Amount excludes 2,875,000 outstanding Public Warrants (as defined herein) issued in connection with the BCAC IPO as such securities are not exercisable until the date that is 30 days after the first date on which BCAC completes a merger, share exchange, asset acquisitions, share purchase, reorganization or similar transaction, involving the Company and one or more businesses. |
(2) | The Sponsor and Representative hold 1,684,500 shares of BCAC Common Stock, comprised of 1,380,000 Founder Shares held by the Sponsor, 57,500 Founder Shares held by the Representative and 247,000 shares of BCAC Common Stock issued as constituent securities of the units issued in the Private Placement. This amount excludes warrants to purchase 123,500 shares of BCAC Common Stock issued as constituent securities of the units issued in the Private Placement (each, a “Private Warrant”). Under the 75% Redemptions and Maximum Redemptions scenarios, the Sponsor will forfeit 174,480 and 460,000 Founder Shares upon the Closing, respectively, pursuant to the terms of the Sponsor Support Agreement. See “ Other Agreements-Sponsor Support Agreement |
(3) | Amount excludes Apexigen Options and Apexigen Warrants that will be converted to equivalent Combined Company options and warrants with the same terms and conditions and exercisable for an estimated 3,451,110 and 13,375 shares of Combined Company common stock, respectively. |
(4) | The PIPE Investors will purchase a unit that includes one share of Combined Company common stock and one-half of one warrant to purchase Combined Company common stock for $10.00 per unit at the Closing. This amount includes 1,502,000 shares of Combined Company common stock subscribed for by PIPE investors and excludes 751,000 PIPE warrants issued to the PIPE Investors. |
(5) | This amount includes 150,000 shares of Combined Company common stock issued to Lincoln Park associated with the financing arrangement upon the Closing and excludes the $1.5 million commitment to issue additional shares of Combined Company common stock, not to exceed 500,000 shares, to Lincoln Park 90 days after the Closing, as well as any draws on the Lincoln Park line. |
Pro Forma Combined |
||||||||||||||||
No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
|||||||||||||
(in thousands, except shares and per share data) |
||||||||||||||||
Selected Unaudited Pro Forma Condensed Combined Statement of Operations Data - Three Months Ended March 31, 2022 |
||||||||||||||||
Operating expenses |
$ | 11,551 | $ | 11,551 | $ | 11,551 | $ | 11,551 | ||||||||
Loss from operations |
(11,551 | ) | (11,551 | ) | (11,551 | ) | (11,551 | ) | ||||||||
Net loss |
(11,502 | ) | (11,502 | ) | (11,502 | ) | (11,502 | ) | ||||||||
Net loss per share - basic and diluted |
$ | (0.43 | ) | $ | (0.48 | ) | $ | (0.51 | ) | $ | (0.55 | ) | ||||
Weighted average shares - basic and diluted |
26,502,169 | 23,971,373 | 22,531,495 | 20,980,577 | ||||||||||||
Selected Unaudited Pro Forma Condensed Combined Statement of Operations Data - Year Ended December 31, 2021 |
||||||||||||||||
Operating expenses |
$ | 34,360 | $ | 34,360 | $ | 34,360 | $ | 34,360 | ||||||||
Loss from operations |
(34,360 | ) | (34,360 | ) | (34,360 | ) | (34,360 | ) | ||||||||
Net loss |
(34,210 | ) | (34,210 | ) | (34,210 | ) | (34,210 | ) | ||||||||
Net loss per share - basic and diluted |
$ | (1.26 | ) | $ | (1.41 | ) | $ | (1.51 | ) | $ | (1.63 | ) | ||||
Weighted average shares - basic and diluted |
27,139,864 | 24,264,864 | 22,652,884 | 20,929,864 | ||||||||||||
Selected Unaudited Pro Forma Condensed Combined Balance Sheet Data - As of March 31, 2022 |
||||||||||||||||
Total current assets |
$ | 87,689 | $ | 61,875 | $ | 48,968 | $ | 36,061 | ||||||||
Total assets |
90,151 | 64,337 | 51,430 | 38,523 | ||||||||||||
Total current liabilities |
18,734 | 18,734 | 18,734 | 18,734 | ||||||||||||
Total liabilities |
18,822 | 18,822 | 18,822 | 18,822 | ||||||||||||
Total stockholders’ equity |
71,329 | 45,515 | 32,608 | 19,701 |
• | our ability to select an appropriate target business or businesses in the life sciences industry; |
• | our ability to complete our initial business combination in the life sciences industry; |
• | our expectations around the performance of the prospective target business or businesses in the life sciences industry; |
• | our success in retaining or recruiting, or changes required in, our officers, key employees or directors following our initial business combination; |
• | our officers and directors allocating their time to other businesses and potentially having conflicts of interest with our business or in approving our initial business combination, as a result of which they would then receive expense reimbursements; |
• | our potential ability to obtain additional financing to complete our initial business combination; |
• | our pool of prospective target businesses in the life sciences industry; |
• | our ability to consummate an initial business combination due to the continued uncertainty resulting from the COVID-19 pandemic; |
• | the ability of our officers and directors to generate a number of potential acquisition opportunities; |
• | our public securities’ potential liquidity and trading; |
• | the lack of a market for our securities; |
• | the use of proceeds not held in the Trust Account or available to us from interest income on the Trust Account balance; |
• | the Trust Account not being subject to claims of third parties; |
• | our financial performance following this offering; |
• | the timing and focus of Apexigen’s current and future clinical trials, and the reporting of data from those trials; |
• | Apexigen’s ability to obtain and maintain regulatory approval of its product candidates; |
• | Apexigen’s estimates of the number of patients in the United States who suffer from the diseases it is targeting and the number of patients that will enroll in clinical trials; |
• | the timing or likelihood of regulatory filings and approvals for Apexigen’s product candidates for various diseases; |
• | Apexigen’s plans relating to commercializing its product candidates, if approved, including which indications will be pursued; |
• | the ability of Apexigen’s clinical trials to demonstrate safety and efficacy, and other positive results, of its product candidates; |
• | the beneficial characteristics, safety, efficacy, and therapeutic effects of Apexigen’s product candidates; |
• | the development of competitors’ product candidates; |
• | existing regulations and regulatory developments in the United States and other jurisdictions; |
• | the need to hire additional personnel and our ability to attract and retain such personnel; |
• | Apexigen’s plans and ability to obtain, maintain, enforce, or protect intellectual property rights; |
• | Apexigen’s continued reliance on third parties to conduct additional clinical trials of its product candidates, and for the manufacture of its product candidates for preclinical studies and clinical trials; and |
• | the success of Apexigen’s licensing agreements. |
• | successful and timely completion of preclinical and clinical development of current and any future product candidates; |
• | timely receipt of marketing approvals from applicable regulatory authorities for current and any future product candidates for which we successfully complete clinical development; |
• | the extent of any required post-marketing approval commitments to applicable regulatory authorities; |
• | developing an efficient and scalable manufacturing process for current and any future product candidates, including establishing and maintaining commercially viable supply and manufacturing relationships with third parties to obtain finished products that are appropriately packaged for sale; |
• | successful launch of commercial sales following any marketing approval, including the development of a commercial infrastructure, whether in-house or with one or more partners or collaborators; |
• | a continued acceptable safety profile following any marketing approval; |
• | commercial acceptance of current and any future product candidates as viable treatment options by patients, the medical community, and third-party payors; |
• | addressing any competing technological and market developments; |
• | identifying, assessing, acquiring, and developing new product candidates; |
• | obtaining and maintaining patent protection, regulatory exclusivity, and other intellectual property-related protection, both in the United States and internationally; |
• | enforcing and defending our rights in our intellectual property portfolio, including our licensed intellectual property; |
• | negotiating favorable terms in any partnership, collaboration, licensing, or other arrangements that may be necessary to develop, manufacture, or commercialize our product candidates; and |
• | attracting, hiring, and retaining qualified personnel. |
• | successful and timely completion of our ongoing clinical trials; |
• | initiation and successful patient enrollment and completion of additional clinical trials on a timely basis; |
• | efficacy, safety and tolerability profiles that are satisfactory to the FDA, EMA or any comparable foreign regulatory authority for marketing approval; |
• | raising additional funds necessary to complete the clinical development of and to commercialize of our product candidates; |
• | timely receipt of marketing approvals for our product candidates from applicable regulatory authorities; |
• | the extent of any required post-marketing approval commitments to applicable regulatory authorities; |
• | the maintenance of existing or the establishment of new supply arrangements with third-party drug product suppliers and manufacturers; |
• | the maintenance of existing or the establishment of new scaled production arrangements with third-party manufacturers to obtain finished products that are appropriately packaged for sale; |
• | obtaining and maintaining patent protection, trade secret protection and regulatory exclusivity, both in the United States and internationally; |
• | protection of our rights in our intellectual property portfolio, including our licensed intellectual property; |
• | successful launch of commercial sales following any marketing approval; |
• | a continued acceptable safety profile following any marketing approval; |
• | commercial acceptance by patients, the medical community, and third-party payors; and |
• | our ability to compete with other therapies. |
• | size and nature of the patient population; |
• | severity of the disease under investigation; |
• | availability and efficacy of approved drugs for the disease under investigation; |
• | patient eligibility criteria for the trial in question; |
• | efforts to facilitate timely enrollment in clinical trials; |
• | patient referral practices of physicians; |
• | clinicians’ and patients’ awareness of, and perceptions as to the potential advantages and risks of, our product candidates in relation to other available therapies, including any new drugs that may be approved for the indications we are investigating; |
• | the ability to monitor patients adequately during and after treatment; |
• | competing ongoing clinical trials for the same indications as our product candidates; |
• | proximity and availability of clinical trial sites for prospective patients; |
• | whether we become subject to a partial or full clinical hold on any of our clinical trials; and |
• | continued enrollment of prospective patients by clinical trial sites, including delays due to pandemics, wars etc. that can impact patient willingness to participate and travel for investigative therapy and reductions in clinical trial site staff and services. |
• | obtaining regulatory approval to commence a trial; |
• | delays in reaching, or the inability to reach, agreement on acceptable terms with prospective contract research organizations (“CROs”), clinical trial sites, laboratory service providers, companion diagnostic development partners, contract manufacturing organizations, or CMOs, and other service providers we may engage to support the conduct of our clinical trials; |
• | obtaining IRB approval at each clinical trial site; |
• | recruiting a sufficient number of suitable patients to participate in a trial; |
• | patients failing to comply with trial protocol or dropping out of a trial, rendering them not evaluable for study endpoints; |
• | clinical trial sites deviating from trial protocol or dropping out of a trial; |
• | the availability of any applicable combination therapies; |
• | developments in the safety and efficacy of any applicable combination therapies; |
• | the need to add new clinical trial sites; or |
• | delays in the testing, validation and manufacturing of product candidates and the delivery of these product candidates to clinical trial sites. |
• | receipt of feedback from regulatory authorities that requires us to modify the design of our clinical trials; |
• | negative or inconclusive clinical trial results that may require us to conduct additional clinical trials or abandon certain drug development programs; |
• | regulators or IRBs may not authorize us, our collaborators, or our investigators to commence a clinical trial or to conduct a clinical trial at a prospective site; |
• | the number of patients required for clinical trials being larger than anticipated, enrollment in these clinical trials being slower than anticipated, or participants dropping out of these clinical trials at a higher rate than anticipated; |
• | third-party contractors failing to comply with regulatory requirements or meet their contractual obligations to us in a timely manner, or at all; |
• | the suspension or termination of our clinical trials for various reasons, including non-compliance with regulatory requirements, a finding that our product candidates have undesirable side effects, safety or efficacy concerns, or any particular combination therapy or other unexpected characteristics or risks; |
• | the cost of clinical trials of our product candidates being greater than anticipated; |
• | for clinical trials testing combination treatment of our product candidates with third-party drug products, delays in procuring such third-party drug products and the delivery of such third-party drug products to clinical trial sites, or the inability to procure such third-party drug products at all; and |
• | regulators revising the requirements for approving our product candidates, including as a result of newly approved agents changing the standard of care of an indication. |
• | the efficacy and safety profile as demonstrated in clinical trials; |
• | the timing of market introduction of the product candidate as well as competitive products; |
• | the approval of other new therapies for the same indications; |
• | the clinical indications for which the product candidate is approved; |
• | restrictions on the use of our products, if approved, such as boxed warnings, contraindications in labeling, or restrictions on use of our products together with other medications, or a risk evaluation and mitigation strategy (REMS), if any, which may not be required of alternative treatments and competitor products; |
• | the potential and perceived advantages of product candidates over alternative treatments or in combination therapies; |
• | the cost of treatment in relation to alternative treatments; |
• | the availability of coverage and adequate reimbursement and pricing by third parties and government authorities; |
• | relative convenience and ease of administration; |
• | the effectiveness of sales and marketing efforts; |
• | the willingness of the target population to try new therapies and of physicians to prescribe these therapies; and |
• | unfavorable publicity relating to the product candidate. |
• | generating sufficient data to support the initiation or continuation of clinical trials; |
• | obtaining regulatory permission to initiate clinical trials; |
• | contracting with the necessary parties to conduct clinical trials; |
• | the successful enrollment of patients in, and the completion of, clinical trials; |
• | the timely manufacture of sufficient quantities of the product candidate, and any combination therapy, for use in clinical trials; and |
• | acceptable adverse profile in the clinical trials. |
• | the development of our product candidates may be adversely affected if we are unable to appropriately select patients for enrollment in our planned clinical trials; |
• | our product candidates may not receive marketing approval if their safe and effective use depends on a companion diagnostic; and |
• | we may not realize the full commercial potential of any product candidates that receive marketing approval if, among other reasons, we are unable to appropriately identify patients targeted by our product candidates. |
• | the FDA, EMA, or comparable foreign regulatory authorities may disagree with the design, implementation, or results of our clinical trials; |
• | the FDA, EMA, or comparable foreign regulatory authorities may determine that our product candidates are not safe and effective, only moderately effective, or have undesirable or unintended side effects, toxicities, or other characteristics that preclude our obtaining marketing approval or prevent or limit commercial use; |
• | the population studied in the clinical program may not be sufficiently broad or representative to assure safety and efficacy in the full population for which we seek approval, including for example due to biologic and genetic differences that might occur in subjects in certain populations such as defined by race or other factors; |
• | we may be unable to demonstrate to the FDA, EMA, or comparable foreign regulatory authorities that a product candidate’s risk-benefit ratio when compared to the standard of care is acceptable; |
• | the FDA, EMA, or comparable foreign regulatory authorities may disagree with our interpretation of data from preclinical studies or clinical trials; |
• | the data collected from clinical trials of our product candidates may not be sufficient to support the submission of a Biologics License Application (“BLA”), New Drug Application (“NDA”), or other submission or to obtain regulatory approval in the United States or elsewhere; |
• | we may be unable to demonstrate to the FDA, EMA, or comparable foreign regulatory authorities that a product candidate’s risk-benefit ratio for a proposed indication is acceptable; |
• | the FDA, EMA, or comparable foreign regulatory authorities may fail to approve the manufacturing processes, test procedures and specifications, or facilities of third-party manufacturers with which we contract for clinical and commercial supplies; and |
• | the approval policies or regulations of the FDA, EMA, or comparable foreign regulatory authorities may significantly change in a manner rendering our clinical data insufficient for approval. |
• | regulatory authorities may withdraw approvals of such product and cause us to recall our products; |
• | regulatory authorities may require additional warnings on the label or impose a more restrictive, narrower indication for use of the agent; |
• | we may be required to change the way the product is administered or conduct additional clinical trials or post-approval studies; |
• | we may be required to create a REMS plan, which could include a medication guide outlining the risks of such side effects for distribution to patients, a communication plan for healthcare providers, and/or other elements, such as boxed warning on the packaging, to assure safe use; |
• | we could be sued and held liable for harm caused to patients; and |
• | our reputation may suffer. |
• | issue warning letters that would result in adverse publicity; |
• | impose civil or criminal penalties; |
• | suspend or withdraw regulatory approvals; |
• | suspend any of our ongoing clinical trials; |
• | refuse to approve pending applications or supplements to approved applications submitted by us; |
• | impose restrictions on our operations, including closing our contract manufacturers’ facilities; |
• | seize or detain products; or |
• | require a product recall. |
• | the demand for our products after obtaining any regulatory approval; |
• | our ability to receive or set a price that we believe is fair for our products; |
• | our ability to generate revenue and achieve or maintain profitability; |
• | the level of taxes that we are required to pay; and |
• | the availability of capital. |
• | comply with the laws of the FDA, EMA and other comparable foreign regulatory authorities; |
• | provide true, complete and accurate information to the FDA, EMA and other comparable foreign regulatory authorities; |
• | comply with manufacturing standards we have established; |
• | comply with healthcare fraud and abuse laws in the United States and similar foreign fraudulent misconduct laws; or |
• | report financial information or data accurately or to disclose unauthorized activities to us. |
• | The federal Anti-Kickback Statute prohibits, among other things, persons from knowingly and willfully soliciting, receiving, offering, or paying any remuneration (including any kickback, bribe, or rebate), directly or indirectly, overtly or covertly, in cash or in kind, to induce, or in return for, either the referral of an individual, or the purchase, lease, order, or recommendation of any good, facility, item, or service for which payment may be made, in whole or in part, under a federal healthcare program, such as the Medicare and Medicaid programs. A person or entity does not need to have actual knowledge of the statute or specific intent to violate it in order to have committed a violation. In addition, the government may assert that a claim including items or services resulting from a violation of the federal Anti-Kickback Statute constitutes a false or fraudulent claim for purposes of the False Claims Act. |
• | Federal civil and criminal false claims laws and civil monetary penalty laws, including the False Claims Act, impose criminal and civil penalties, including through civil actions, against individuals or entities from knowingly presenting, or causing to be presented, claims for payment or approval from Medicare, Medicaid or other third-party payors that are false or fraudulent, or knowingly making a false statement to improperly avoid, decrease or conceal an obligation to pay money to the federal government. Similar to the federal Anti-Kickback Statute, a person or entity does not need to have actual knowledge of these statutes or specific intent to violate them in order to have committed a violation. |
• | The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) created new federal criminal statutes that prohibit knowingly and willfully executing, or attempting to execute, a scheme to defraud any healthcare benefit program or obtain, by means of false or fraudulent pretenses, representations or promises, any of the money or property owned by, or under the custody or control of, any healthcare benefit program, regardless of the payor (e.g., public or private) and knowingly and willfully falsifying, concealing, or covering up by any trick or device a material fact or making any materially false statements in connection with the delivery of, or payment for, healthcare benefits, items or services relating to healthcare matters. |
• | HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”) and their respective implementing regulations, impose requirements on certain covered healthcare providers, health plans, and healthcare clearinghouses as well as their respective business associates that perform services for them that involve the use, or disclosure of, individually identifiable health information, relating to the privacy, security, and transmission of individually identifiable health information without appropriate authorization. |
• | The federal Physician Payment Sunshine Act, created under the ACA, and its implementing regulations, require manufacturers of drugs, devices, biologicals, and medical supplies for which payment is available under Medicare, Medicaid or the Children’s Health Insurance Program to report annually to the HHS under the Open Payments Program, information related to payments or other transfers of value made to physicians and teaching hospitals, as well as ownership and investment interests held by physicians and their immediate family members. |
• | Federal consumer protection and unfair competition laws broadly regulate marketplace activities and activities that potentially harm consumers. |
• | Analogous state and foreign laws and regulations, such as state and foreign anti-kickback, false claims, consumer protection, and unfair competition laws may apply to pharmaceutical business practices, including research, distribution, sales, and marketing arrangements, as well as submitting claims |
involving healthcare items or services reimbursed by any third-party payor, including commercial insurers. |
• | State laws require pharmaceutical companies to comply with the pharmaceutical industry’s voluntary compliance guidelines and the relevant compliance guidance promulgated by the federal government that otherwise restricts payments that may be made to healthcare providers and other potential referral sources. |
• | State laws also require drug manufacturers to file reports with states regarding pricing and marketing information, such as the tracking and reporting of gifts, compensations, and other remuneration, and items of value provided to healthcare professionals and entities. |
• | State and foreign laws also govern the privacy and security of health information in certain circumstances, many of which differ from each other in significant ways and may not have the same effect, thus complicating compliance efforts. |
• | those governing laboratory procedures; |
• | the generation, handling, use, storage, treatment and disposal of hazardous and regulated materials and wastes; |
• | the emission and discharge of hazardous materials into the ground, air and water; and |
• | employee health and safety. |
• | identifying, recruiting, integrating, maintaining, and motivating additional employees; |
• | managing our internal development efforts effectively, including the clinical and FDA and EMA review process for our current and any future product candidates, while complying with any contractual obligations to contractors and other third parties we may have; and |
• | improving our operational, financial and management controls, reporting systems and procedures. |
• | multiple, conflicting, and changing laws and regulations such as privacy regulations, tax laws, export and import restrictions, employment laws, regulatory requirements, and other governmental approvals, permits and licenses; |
• | failure by us to obtain and maintain regulatory approvals for the use of our products in various countries; |
• | rejection or qualification of foreign clinical trial data by the competent authorities of other countries; |
• | additional potentially relevant third-party patent rights; |
• | complexities and difficulties in obtaining protection and enforcing our intellectual property; |
• | difficulties in staffing and managing foreign operations; |
• | complexities associated with managing multiple payor reimbursement regimes, government payors, or patient self-pay systems; |
• | limits in our ability to penetrate international markets; |
• | financial risks, such as longer payment cycles, difficulty collecting accounts receivable, the impact of local and regional financial crises on demand and payment for our products, and exposure to foreign currency exchange rate fluctuations; |
• | natural disasters, political and economic instability, including wars, terrorism, and political unrest, outbreak of disease, boycotts, curtailment of trade, and other business restrictions; |
• | certain expenses including, among others, expenses for travel, translation, and insurance; and |
• | regulatory and compliance risks that relate to anti-corruption compliance and record-keeping that may fall within the purview of the FCPA, its accounting provisions or its anti-bribery provisions, or provisions of anti-corruption or anti-bribery laws in other countries. |
• | the scope of rights granted under the license agreement and other interpretation-related issues; |
• | the extent to which our technology and processes infringe on intellectual property of the licensor that is not subject to the licensing agreement; |
• | the sublicensing of patent and other rights under our existing collaborative development relationships and any collaboration relationships we might enter into in the future; |
• | our diligence obligations under the license agreement and what activities satisfy those diligence obligations; |
• | the inventorship and ownership of inventions and know-how resulting from the joint creation or use of intellectual property by our current and future licensors and us; and |
• | the priority of invention of patented technology. |
• | others may make products that are similar to any product candidates we may develop or utilize similar technology but that are not covered by the claims of the patents that we license or may own in the future; |
• | others may independently develop similar or alternative technologies or duplicate any of our technologies without infringing our owned or licensed intellectual property rights; |
• | our competitors might conduct research and development activities in countries where we do not have patent rights and then use the information learned from such activities to develop competitive products for sale in our major commercial markets; |
• | we may not develop additional proprietary technologies that are patentable; and |
• | we may choose not to file a patent in order to maintain certain trade secrets or know-how, and a third party may subsequently file a patent covering such intellectual property. |
• | the possible failure of the third party to manufacture our product candidates according to our specifications; |
• | the possible failure of the third party to manufacture our product candidate according to our schedule, or at all, including if our third-party contractors give greater priority to the supply of other products over our product candidates or otherwise do not satisfactorily perform according to the terms of the agreements between us and them; |
• | the possible failure of our third-party manufacturer to procure raw materials from third-party suppliers and potential exposure to supply chain issues impacting delivery dates, quality, quantity and pricing of |
raw materials, including due to the COVID-19 pandemic, which may result in additional costs and delays in production of clinical trial materials, commercial product and regulatory approvals; |
• | the possible termination or nonrenewal of agreements by our third-party contractors at a time that is costly or inconvenient for us; |
• | the possible breach by the third-party contractors of our agreements with them; |
• | the failure of third-party contractors to comply with applicable regulatory requirements; |
• | the possible mislabeling of clinical supplies, potentially resulting in the wrong dose amounts being supplied or active drug or placebo not being properly identified; |
• | the possibility of clinical supplies not being delivered to clinical sites on time, leading to clinical trial interruptions, or, following approval by regulatory authorities, of drug supplies not being distributed to commercial vendors in a timely manner, resulting in lost sales; and |
• | the possible misappropriation of our proprietary information, including our trade secrets and know-how. |
• | counterparties generally have significant discretion, if not total control, in determining the efforts and resources that they will apply to these development efforts; |
• | counterparties may not properly or adequately obtain, maintain, enforce, or defend intellectual property or proprietary rights relating to our intellectual property or may use our proprietary information in such a way as to expose us to potential litigation or other intellectual property-related proceedings, including proceedings challenging the scope, ownership, validity, and enforceability of our intellectual property; |
• | counterparties may own or co-own with us intellectual property covering their product candidates, and, in such cases, we typically will not have the exclusive right to commercialize such intellectual property or their product candidates based on the terms of the licensing agreement; |
• | we may need the cooperation of these counterparties to enforce or defend any intellectual property we contribute to the program; |
• | counterparties typically will control the interactions with regulatory authorities related to their product candidates, which may impact our ability to obtain and maintain regulatory approval of our own product candidates; |
• | disputes may arise between the counterparties and us that result in the delay or termination of the research, development, or commercialization of our product candidates or research programs or that result in costly litigation or arbitration that diverts management attention and resources; |
• | counterparties may decide to not pursue development and commercialization of any product candidates that are derived from our licensed technology, or may elect not to continue or renew development or commercialization programs based on clinical trial results, changes in the counterparties’ strategic focus or available funding or external factors such as an acquisition that diverts resources or creates competing priorities, or counterparties may elect to fund or commercialize a competing product; |
• | counterparties could independently develop, or develop with third parties, products that compete directly or indirectly with our product candidates or research programs if the collaborators believe that competitive products are more likely to be successfully developed or can be commercialized under terms that are more economically attractive than ours; |
• | counterparties may not commit sufficient resources to the marketing and distribution of their product candidates, resulting in lower royalties to us; |
• | counterparties may grant sublicenses to our technology or undergo a change of control, and the sublicensees or new owners may decide to pursue a strategy with respect to the program which is not in our best interest; |
• | counterparties may become bankrupt, which may significantly delay our research or development programs, or may cause us to lose access to valuable technology, know-how, or intellectual property of the counterparty relating to our technology in relation to the terms of the licensing agreement; |
• | if these counterparties do not satisfy their obligations under our agreements with them, or if they terminate our licensing agreements with them, we may be adversely impacted; and |
• | licensing agreements may not lead to development or commercialization of product candidates in the most efficient manner or at all. |
• | exposure to unknown liabilities; |
• | increased operating expenses and cash requirements; |
• | the assumption of additional indebtedness or contingent liabilities; |
• | the issuance of our equity securities; |
• | assimilation of operations, intellectual property, and products of an acquired company, including costs and difficulties associated with integrating new personnel; |
• | the diversion of our management’s attention from our existing product programs and initiatives in pursuing such a strategic merger or acquisition; |
• | retention of key employees, the loss of key personnel, and uncertainties in our ability to maintain key business relationships; |
• | impairment of relationships with key collaborators and other counterparties of any acquired businesses due to changes in management and ownership; |
• | risks and uncertainties associated with the other party to such a transaction, including the prospects of that party and their existing products or product candidates and marketing approvals; and |
• | our inability to generate revenue from acquired technology and/or products sufficient to meet our objectives in undertaking the acquisition or even to offset the associated acquisition and maintenance costs. |
• | delays or difficulties in enrolling and retaining subjects, including elderly subjects, who are at a higher risk of severe illness or death from COVID-19, in our ongoing clinical trials and our future clinical trials; |
• | delays or difficulties in clinical site initiation, including due to difficulties in staffing and recruiting at clinical sites; |
• | difficulties interpreting data from our clinical trials due to the possible effects of COVID-19 on subjects; |
• | diversion of healthcare resources away from the conduct of clinical trials, including the diversion of hospitals serving as our clinical trial sites and hospital staff supporting the conduct of clinical trials; |
• | interruption of key clinical trial activities, such as clinical trial site monitoring, due to limitations on travel imposed or recommended by federal or state governments, employers and others; |
• | limitations in resources, including our employees, that would otherwise be focused on the conduct of our business or our current or planned clinical trials or preclinical research, including because of sickness, the desire to avoid contact with large groups of people, or restrictions on movement or access to our facility as a result of government-imposed “shelter in place” or similar working restrictions; |
• | interruptions, difficulties or delays arising in our existing operations and company culture as a result of some or all of our employees working remotely, including those hired during the COVID-19 pandemic; |
• | delays in receiving approval from regulatory authorities to initiate our clinical trials; |
• | interruptions in preclinical studies due to restricted or limited operations at the CROs conducting such studies; |
• | interruptions or delays in the operations of the FDA or other domestic or foreign regulatory authorities, which may impact review and approval timelines; |
• | delays in receiving the supplies, materials and services needed to conduct clinical trials and preclinical research; |
• | changes in regulations as part of a response to the COVID-19 pandemic which may require us to change the ways in which our clinical trials are conducted, which may result in unexpected costs or require us to discontinue the clinical trial altogether; |
• | interruptions or delays to our development pipeline; |
• | delays in necessary interactions with regulators, ethics committees and other important agencies and contractors due to limitations in employee resources or forced furlough of government or contractor personnel; and |
• | refusal of the FDA to accept data from clinical trials in affected geographies outside of the United States. |
• | a limited availability of market quotations for the Combined Company’s securities; |
• | reduced liquidity for the Combined Company’s securities; |
• | a determination that the Combined Company’s common stock is a “penny stock” which will require brokers trading in the Combined Company’s common stock to adhere to more stringent rules, possibly resulting in a reduced level of trading activity in the secondary trading market for shares of the Combined Company’s common stock; |
• | a limited amount of analyst coverage; and |
• | a decreased ability to issue additional securities or obtain additional financing in the future. |
• | BCAC may experience negative reactions from the financial markets, including negative impacts on the stock price of shares of BCAC Common Stock (including to the extent that the current market price reflects a market assumption that the Business Combination will be completed); |
• | BCAC will have incurred substantial expenses and will be required to pay certain costs relating to the Business Combination, whether or not the Business Combination is completed; and |
• | since the Business Combination Agreement restricts the conduct of BCAC’s businesses prior to completion of the Business Combination, BCAC may not have been able to take certain actions during the pendency of the Business Combination that would have benefitted it as an independent company, and the opportunity to take such actions may no longer be available. See “ The Business Combination Agreement-Covenants and Agreements |
• | If the Business Combination with Apexigen or another business combination is not consummated within the Completion Window, BCAC will cease all operations except for the purpose of winding up, redeeming 100% of the outstanding Public Shares for cash and, subject to the approval of its remaining stockholders and the BCAC Board, dissolving and liquidating. In such event, the 1,437,500 Founder Shares held by the Sponsor and the Representative, which were acquired for a purchase price of approximately $0.017 per share, would be worthless because holders of the Founder Shares are not entitled to participate in any redemption or distribution with respect to such shares. The 1,380,000 Founder Shares held by the Sponsor had an aggregate market value of $[●] based upon the closing price of $[●] per share of BCAC Common Stock on the Nasdaq on the Record Date. Each of BCAC’s directors is a member of the Sponsor, and therefore will have an economic interest in the Founder Shares held by the Sponsor. |
• | Given the differential in the purchase price that our Sponsor paid for the Founder Shares as compared to the price of the BCAC units sold in the BCAC IPO and the substantial number of shares of Combined Company common stock that our Sponsor will receive upon conversion of the Founder Shares in connection with the Business Combination, our Sponsor and its affiliates may earn a positive rate of return on their investment even if the Combined Company common stock trades below the price initially paid for the BCAC units in the BCAC IPO and the Public Stockholders experience a negative rate of return following the completion of the Business Combination. Thus, our Sponsor and its affiliates may have more of an economic incentive for us to, rather than liquidate if we fail to complete our initial business combination by the Completion Window, enter into an initial business combination on potentially less favorable terms with a potentially less favorable, riskier, weaker-performing or financially unstable business, or an entity lacking an established record of revenues or earnings, than would be the case if such parties had paid the full offering price for their Founder Shares. |
• | The Sponsor purchased an aggregate of 247,000 placement units from BCAC for an aggregate purchase price of $2,470,000 (or $10.00 per warrant). This purchase took place on a private placement basis simultaneously with the consummation of the BCAC IPO. A portion of the proceeds BCAC received from this purchase were placed in the Trust Account. Such units had an aggregate market value of approximately $[●] based upon the closing price of $[●] per warrant on the Nasdaq on [●], 2022, the Record Date. The placement units will become worthless if BCAC does not consummate a business combination within the Completion Window. |
• | In connection with the approval of the Extension Amendment, the Sponsor has agreed to contribute to BCAC as a loan the Additional Contributions. The amount of the Additional Contributions will not bear interest and will be repayable by BCAC to the Sponsor upon the Closing. |
• | Samuel Wertheimer will become a director of the Combined Company after the Closing. As such, in the future he may receive any cash fees, stock options or stock awards that the Board determines to pay to its directors. |
• | BCAC’s directors and officers, and their affiliates are entitled to reimbursement of out-of-pocket |
• | The continued indemnification of current directors and officers and the continuation of directors’ and officers’ liability insurance. |
• | In the event of the liquidation of the Trust Account, the Sponsor has agreed to indemnify and hold harmless BCAC against any and all losses, liabilities, claims, damages and expenses to which BCAC may become subject as a result of any claim by (i) any third party for services rendered or products sold to BCAC or (ii) a prospective target business with which BCAC has entered into an acquisition agreement, provided that such indemnification of BCAC by the Sponsor shall apply only to the extent necessary to ensure that such claims by a third party for services rendered or products sold to BCAC or a target do not reduce the amount of funds in the Trust Account to below (i) $10.00 per share of BCAC Common Stock or (ii) such lesser amount per share of BCAC Common Stock held in the Trust Account due to reductions in the value of the trust assets as of the date of the liquidation of the Trust Account, in each case, net of the amount of interest earned on the property in the Trust Account, which may be withdrawn to pay taxes and expenses related to the administration of the Trust Account, except as to any claims by a third party (including a target) who executed a waiver of any and all rights to seek access to the Trust Account and except as to any claims under BCAC’s indemnity of the underwriters of the BCAC IPO against certain liabilities, including liabilities under the Securities Act. If BCAC consummates the Business Combination, on the other hand, BCAC will be liable for all such claims. |
• | The Sponsor has agreed not to transfer, assign, or sell any of its Founder Shares until 180 days following the consummation of the Business Combination, subject to certain customary exceptions. |
• | Subject to certain limited exceptions, the placement units will not be transferable until 30 days following the completion of the Business Combination. |
• | For a period of six years after the Closing Date, BCAC shall defend, indemnify and hold harmless the Sponsor, its affiliates, and their respective present and former directors and officers against any costs or expenses, judgments, fines, losses, claims, damages or liabilities incurred in connection with any action by any stockholder of BCAC who has not exercised Redemption Rights arising from Sponsor’s ownership of equity securities of BCAC, or its control or ability to influence BCAC, and further arising out of or pertaining to the transactions, actions, and investments contemplated by the Business Combination Agreement or any Ancillary Agreements. |
• | BCAC will pay Brookline Capital Markets, an affiliate of our Sponsor for which certain of our officers provide services, $200,000 to act as BCAC’s financial advisor, investment banker, and consultant in connection with the Business Combination. The services provided by Brookline Capital Markets included assessment of the market environment as well as BCAC’s relative positioning within the marketplace, assessment of BCAC’s stockholder base, potential target investors and potential marketing strategies for its securities, assistance in the preparation of marketing materials for BCAC, and other customary financial advisory services and investment banking services in connection with BCAC’s contemplated business combination transaction. While Brookline Capital Markets provided |
assistance to BCAC in the preparation of our initial terms proposed to Apexigen, it did not otherwise participate in any discussions among the parties. |
• | In the event that the BCAC Related Funds Amount at Closing is less than $20,000,000, then that number of Sponsor Shares equal to (x) one (1) minus the quotient of the BCAC Related Funds Amount divided by $20,000,000, multiplied by (y) one-third (1/3) of the total number of Sponsor Shares, shall be deemed automatically forfeited and cancelled without any further actions by the Sponsor or any other person, and such surrendered shares will be recorded as cancelled by the Combined Company. |
• | the impact of the COVID-19 pandemic on our financial condition and the results of operations; |
• | our operating and financial performance and prospects; |
• | our quarterly or annual earnings or those of other companies in our industry compared to market expectations; |
• | conditions that impact demand for our products and/or services; |
• | future announcements concerning our business, our clients’ businesses or our competitors’ businesses; |
• | the public’s reaction to our press releases, other public announcements and filings with the SEC; |
• | the market’s reaction to our reduced disclosure and other requirements as a result of being an “emerging growth company” under the Jumpstart Our Business Startups Act (the “JOBS Act”); |
• | the size of our public float; |
• | coverage by or changes in financial estimates by securities analysts or failure to meet their expectations; |
• | market and industry perception of our success, or lack thereof, in pursuing our growth strategy; |
• | strategic actions by us or our competitors, such as acquisitions or restructurings; |
• | changes in laws or regulations which adversely affect our industry or us; |
• | privacy and data protection laws, privacy or data breaches, or the loss of data; |
• | changes in accounting standards, policies, guidance, interpretations or principles; |
• | changes in senior management or key personnel; |
• | issuances, exchanges or sales, or expected issuances, exchanges or sales of our capital stock; |
• | changes in our dividend policy; |
• | adverse resolution of new or pending litigation against us; and |
• | changes in general market, economic and political conditions in the United States and global economies or financial markets, including those resulting from natural disasters, terrorist attacks, acts of war and responses to such events. |
• | a staggered board, which means that the Combined Company Board will be classified into three classes of directors with staggered three-year terms and directors will only be able to be removed from office for cause; |
• | limitations on convening special stockholder meetings, which could make it difficult for our stockholders to adopt desired governance changes; |
• | a prohibition on stockholder action by written consent, which means that our stockholders will only be able to take action at a meeting of stockholders and will not be able to take action by written consent for any matter; |
• | a forum selection clause, which means certain litigation against us can only be brought in Delaware; |
• | the authorization of undesignated preferred stock, the terms of which may be established and shares of which may be issued without further action by our stockholders; and |
• | advance notice procedures, which apply for stockholders to nominate candidates for election as directors or to bring matters before an annual meeting of stockholders. |
• | audited historical financial statements of BCAC for the year ended December 31, 2021; |
• | unaudited historical condensed financial statements of BCAC as of and for the three months ended March 31, 2022; |
• | audited historical financial statements of Apexigen for the year ended December 31, 2021; |
• | unaudited historical condensed financial statements of Apexigen as of and for the three months ended March 31, 2022; and |
• | other information relating to BCAC and Apexigen included in this proxy statement/prospectus, including the Business Combination Agreement and the description of certain terms thereof and the financial and operational condition of BCAC and Apexigen (see “ Proposal No. 1—The Business |
Combination Agreement,” “BCAC Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Apexigen Management’s Discussion and Analysis of Financial Condition and Results of Operations”) |
• | the Merger of Merger Sub, the wholly owned subsidiary of BCAC, with and into Apexigen, with Apexigen as the surviving company; |
• | the cancellation of each issued and outstanding share of Apexigen’s capital stock (including shares of Apexigen capital stock resulting from the conversion of Apexigen’s preferred stock or the exercise of Apexigen Options or Apexigen Warrants) and the conversion into the right to receive a number of shares of Combined Company common stock based on the Exchange Ratio; |
• | the conversion on a net-exercise basis of one Apexigen Warrant (the “Convertible Warrant”), pursuant to its terms, immediately prior to the Closing into shares of Combined Company common stock based on the Exchange Ratio; |
• | the exchange of all outstanding Apexigen Warrants (other than the Convertible Warrant) into warrants exercisable for shares of Combined Company common stock with the same terms except for the number of shares exercisable and the exercise price, each of which will be adjusted using the Exchange Ratio; and |
• | the exchange of all outstanding vested and unvested Apexigen Options into Combined Company Options exercisable for shares of Combined Company common stock with the same terms except for the number of shares exercisable and the exercise price, each of which will be adjusted using the Exchange Ratio. |
• | PIPE Investment: Issuance and sale of 1,502,000 units at a purchase price of $10.00 per unit pursuant to the PIPE Investment. The PIPE Investors will purchase units, each of which includes one share of Combined Company common stock and one-half of one warrant to purchase a share of Combined Company common stock. The PIPE Investment will result in the issuance of 1,502,000 shares of Combined Company common stock and 751,000 PIPE Warrants. |
• | Lincoln Park Purchase Arrangement: BCAC, Apexigen and Lincoln Park have entered into a purchase agreement pursuant to which the Combined Company may direct Lincoln Park to purchase up to $50.0 million of Combined Company common stock from time to time over a 24-month period following the Closing, subject to certain limitations contained in the Lincoln Park Purchase Agreement. At the Closing, the Combined Company is obligated to issue 150,000 shares of Combined Company common stock to Lincoln Park. 90 days after the Closing, Combined Company is obligated to issue $1.5 million of shares of Combined Company common stock to Lincoln Park at a price per share equal to the arithmetic average of the closing sale price for Combined Company common stock during the 10 consecutive business days immediately preceding the share delivery date but in no event shall these additional commitment shares exceed 500,000 shares. |
• | Founder Shares: During May 2020, the Sponsor subscribed to purchase 1,437,500 shares of BCAC Common Stock for an aggregate price of $25,000. 57,500 Founder shares were transferred to the Representative. As of the Closing, up to 1,380,000 Founder Shares will be outstanding and held by the Sponsor and 57,500 will be held by the Representative. As a result of the Merger, the Founder Shares held by the Sponsor will be modified and remain restricted until the Closing and the Sponsor will forfeit up to 460,000 Founder Shares if the BCAC Related Funds Amount at the Closing is less than $20.0 million, pursuant to the terms of the Sponsor Support Agreement. See “Other Agreements - Sponsor Support Agreement |
• | Amendment to BCAC Articles of Incorporation: On April 26, 2022, BCAC held a special meeting of its stockholders. BCAC stockholders approved a proposal to amend BCAC’s Amended and Restated Certificate of Incorporation to extend the date by which BCAC must consummate a business combination transaction from May 2, 2022 on a monthly basis up to November 2, 2022. BCAC Public stockholders elected to redeem 688,408 shares of common stock for total redemption proceeds of $7.0 million (the “April Partial Redemption”), after which 5,061,592 shares of BCAC Common Stock subject to redemption remain outstanding. This redemption has been reflected in all four scenarios presented below. |
• | Sponsor Extension Note: On May 2, 2022, BCAC issued the Extension Note in the principal amount of $0.2 million to the Sponsor, this amount was deposited into the Trust Account. The Extension Note was issued in connection with the approval of the amendment to the Existing Charter and extension (the “Extension”) of the date by which the Company must consummate a business combination transaction from May 2, 2022 (the date which is 15 months from the closing date of the Company’s initial public offering of units) on a monthly basis up to November 2, 2022 and constitutes the first monthly contribution. The Sponsor will increase the Extension Note on a monthly basis until the Closing. The Sponsor will be repaid in cash upon the Closing. |
• | Sponsor Working Capital Note: On May 2, 2022, BCAC issued the Working Capital Note in the principal amount of $0.4 million to the Sponsor. The Working Capital Note was issued to provide BCAC with additional working capital during the Extension and will not be deposited into the Trust Account. BCAC issued the Working Capital Note in consideration for a loan from the Sponsor to fund BCAC’s working capital requirements. The Working Capital Note is convertible at the Sponsor’s |
election upon the Closing. Upon such election, the Working Capital Note will convert, at a price of $10.00 per unit, into units identical to the Private Placement Units issued in connection with the BCAC IPO. The unaudited pro forma condensed combined financial information scenarios assume that the Working Capital Note is settled in cash upon the Closing. |
• | Assuming No Additional Redemptions: |
• | Assuming 50% Redemptions: |
• | Assuming 75% Redemptions: |
• | Assuming Maximum Redemptions: |
No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
|||||||||||||||||||||||||||||
Shares |
% |
Shares |
% |
Shares |
% |
Shares |
% |
|||||||||||||||||||||||||
BCAC Public Stockholders (1) |
5,061,592 | 19.1 | % | 5,061,592 | 21.2 | % | 5,061,592 | 22.4 | % | 5,061,592 | 19.1 | % | ||||||||||||||||||||
Less: shares of BCAC Common Stock redeemed |
— | 0.0 | % | (2,530,796 | ) | (10.6 | )% | (3,796,194 | ) | (16.8 | )% | (5,061,592 | ) | (19.1 | )% | |||||||||||||||||
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Total held by BCAC Public Stockholders |
5,061,592 | 19.1 | % | 2,530,796 | 10.6 | % | 1,265,398 | 5.6 | % | — | 0.0 | % | ||||||||||||||||||||
Sponsor and Representative (2) |
1,684,500 | 6.4 | % | 1,684,500 | 7.0 | % | 1,510,020 | 6.7 | % | 1,224,500 | 5.8 | % | ||||||||||||||||||||
Former Apexigen stockholders (3) |
18,104,074 | 68.2 | % | 18,104,074 | 75.5 | % | 18,104,074 | 80.3 | % | 18,104,074 | 86.3 | % | ||||||||||||||||||||
PIPE Investors (4) |
1,502,000 | 5.7 | % | 1,502,000 | 6.3 | % | 1,502,000 | 6.7 | % | 1,502,000 | 7.2 | % | ||||||||||||||||||||
Lincoln Park (5) |
150,000 | 0.6 | % | 150,000 | 0.6 | % | 150,000 | 0.7 | % | 150,000 | 0.7 | % | ||||||||||||||||||||
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Pro Forma Combined Company common stock outstanding at Closing |
26,502,166 | 100.0 | % | 23,971,370 | 100.0 | % | 22,531,492 | 100.0 | % | 20,980,574 | 100.0 | % | ||||||||||||||||||||
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(1) | Amount excludes 2,875,000 outstanding Public Warrants issued in connection with the BCAC IPO as such securities are not exercisable until the date that is 30 days after the first date on which BCAC completes a merger, share exchange, asset acquisitions, share purchase, reorganization or similar transaction, involving the Company and one or more businesses. |
(2) | The Sponsor and Representative hold 1,684,500 shares of BCAC Common Stock, comprised of 1,380,000 Founder Shares held by the Sponsor, 57,500 Founder Shares held by the Representative and 247,000 shares of BCAC Common Stock issued as constituent securities of the units issued in the Private Placement. This amount excludes 123,500 Private Warrants. Under the 75% Redemptions and Maximum Redemptions scenarios, the Sponsor will forfeit 174,480 and 460,000 Founder Shares upon the Closing, respectively, pursuant to the terms of the Sponsor Support Agreement. See “ Other Agreements-Sponsor Support Agreement |
(3) | Amount excludes Apexigen Options and Apexigen Warrants that will be converted to equivalent Combined Company options and warrants with the same terms and conditions and exercisable for an estimated 3,451,110 and 13,375 shares of Combined Company common stock, respectively. |
(4) | The PIPE Investors will purchase a unit that includes one share of Combined Company common stock and one-half of one warrant to purchase Combined Company common stock (each such warrant, a “PIPE Warrant”) for $10.00 per unit at the Closing. This amount includes 1,502,000 shares of Combined Company common stock subscribed for by PIPE investors and excludes 751,000 PIPE warrants issued to the PIPE Investors. |
(5) | This amount includes 150,000 shares of Combined Company common stock issued to Lincoln Park associated with the financing arrangement upon the Closing and excludes the $1.5 million commitment to issue additional shares of Combined Company common stock, not to exceed 500,000 shares, to Lincoln Park 90 days after the Closing, as well as any draws on the Lincoln Park line. |
• | Apexigen stockholders comprise a relative majority of greater than 60% of the voting power of the Combined Company under all redemption scenarios; |
• | Apexigen will have the ability to nominate a majority of the members of the board of directors of the Combined Company; |
• | Apexigen’s operations prior to the acquisition comprise the only ongoing operations of Combined Company; |
• | Apexigen’s senior management comprise the senior management of Combined Company; |
• | The Combined Company will assume the Apexigen name; |
• | The ongoing operations of Apexigen will become the operations of the Combined Company; and |
• | Apexigen’s headquarters will become the Combined Company’s headquarters. |
No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
|||||||||||||||||||||||||||||||||||||||||||||||||||||
BCAC (Historical) |
Apexigen (Historical) |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
|||||||||||||||||||||||||||||||||||||||||||||||
Assets |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Current assets: |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cash and cash equivalents |
$ | 93 | $ | 17,551 | $ | 58,088 | A |
$ | 74,497 | $ | 58,088 | A |
$ | 48,683 | $ | 58,088 | A |
$ | 35,776 | $ | 58,088 | A |
$ | 22,869 | ||||||||||||||||||||||||||||||||
15,020 | B |
15,020 | B |
15,020 | B |
15,020 | B |
|||||||||||||||||||||||||||||||||||||||||||||||||
(4,502 | ) | C |
(4,502 | ) | C |
(4,502 | ) | C |
(4,502 | ) | C |
|||||||||||||||||||||||||||||||||||||||||||||
(4,800 | ) | CC |
(4,800 | ) | CC |
(4,800 | ) | CC |
(4,800 | ) | CC |
|||||||||||||||||||||||||||||||||||||||||||||
(6,953 | ) | D |
(6,953 | ) | D |
(6,953 | ) | D |
(6,953 | ) | D |
|||||||||||||||||||||||||||||||||||||||||||||
— | K |
— | K |
— | K |
— | K |
|||||||||||||||||||||||||||||||||||||||||||||||||
— | (25,814 | ) | F |
(38,721 | ) | FF |
(51,628 | ) | FFF |
|||||||||||||||||||||||||||||||||||||||||||||||
Short-term investments |
— | 10,387 | — | 10,387 | — | 10,387 | — | 10,387 | — | 10,387 | ||||||||||||||||||||||||||||||||||||||||||||||
Deferred issuance costs, current |
— | — | 1,525 | J |
1,525 | 1,525 | J |
1,525 | 1,525 | J |
1,525 | 1,525 | J |
1,525 | ||||||||||||||||||||||||||||||||||||||||||
Prepaid expenses and other current assets |
98 | 2,569 | (1,336 | ) | C |
1,281 | (1,336 | ) | C |
1,281 | (1,336 | ) | C |
1,281 | (1,336 | ) | C |
1,281 | ||||||||||||||||||||||||||||||||||||||
(50 | ) | J |
(50 | ) | J |
(50 | ) | J |
(50 | ) | J |
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|||||||||||||||||||||||||||||||||||||
Total current assets |
191 | 30,507 | 56,992 | 87,690 | 31,178 | 61,876 | 18,271 | 48,969 | 5,364 | 36,062 | ||||||||||||||||||||||||||||||||||||||||||||||
Property and equipment, net |
— | 217 | — | 217 | — | 217 | — | 217 | — | 217 | ||||||||||||||||||||||||||||||||||||||||||||||
Right-of-use |
— | 389 | — | 389 | — | 389 | — | 389 | — | 389 | ||||||||||||||||||||||||||||||||||||||||||||||
Investments held in Trust Account |
58,088 | — | (58,088 | ) | A |
— | (58,088 | ) | A |
— | (58,088 | ) | A |
— | (58,088 | ) | A |
— | ||||||||||||||||||||||||||||||||||||||
Deferred issuance costs, non-current |
— | — | 1,525 | J |
1,525 | 1,525 | J |
1,525 | 1,525 | J |
1,525 | 1,525 | J |
1,525 | ||||||||||||||||||||||||||||||||||||||||||
Other assets |
— | 331 | — | 331 | — | 331 | — | 331 | — | 331 | ||||||||||||||||||||||||||||||||||||||||||||||
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Total assets |
$ | 58,279 | $ | 31,444 | $ | 429 | $ | 90,152 | $ | (25,385 | ) | $ | 64,338 | $ | (38,292 | ) | $ | 51,431 | $ | (51,199 | ) | $ | 38,524 | |||||||||||||||||||||||||||||||||
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Liabilities, Convertible Preferred Stock and Stockholders’ Equity (Deficit) |
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Current liabilities: |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Accounts payable |
$ | 109 | $ | 4,681 | $ | (787 | ) | C |
$ | 4,003 | $ | (787 | ) | C |
$ | 4,003 | $ | (787 | ) | C |
$ | 4,003 | $ | (787 | ) | C |
$ | 4,003 | ||||||||||||||||||||||||||||
Accrued liabilities |
2,435 | 8,801 | 1,500 | J |
10,177 | 1,500 | J |
10,177 | 1,500 | J |
10,177 | 1,500 | J |
10,177 | ||||||||||||||||||||||||||||||||||||||||||
(417 | ) | C |
(417 | ) | C |
(417 | ) | C |
(417 | ) | C |
|||||||||||||||||||||||||||||||||||||||||||||
(2,142 | ) | CC |
(2,142 | ) | CC |
(2,142 | ) | CC |
(2,142 | ) | CC |
|||||||||||||||||||||||||||||||||||||||||||||
Accrued liabilities-Related Party |
60 | 60 | 60 | 60 | 60 | |||||||||||||||||||||||||||||||||||||||||||||||||||
Deferred revenue |
— | 4,117 | — | 4,117 | — | 4,117 | — | 4,117 | — | 4,117 | ||||||||||||||||||||||||||||||||||||||||||||||
Lease liabilities, current portion |
— | 378 | — | 378 | — | 378 | — | 378 | — | 378 | ||||||||||||||||||||||||||||||||||||||||||||||
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Total current liabilities |
2,604 | 17,977 | (1,846 | ) | 18,735 | (1,846 | ) | 18,735 | (1,846 | ) | 18,735 | (1,846 | ) | 18,735 |
No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
|||||||||||||||||||||||||||||||||||||||||||||||||||
BCAC (Historical) |
Apexigen (Historical) |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
|||||||||||||||||||||||||||||||||||||||||||||
Lease liabilities, less current portion |
— | 35 | — | 35 | — | 35 | — | 35 | — | 35 | ||||||||||||||||||||||||||||||||||||||||||||
Derivative warrant liabilities |
53 | — | — | 53 | — | 53 | — | 53 | — | 53 | ||||||||||||||||||||||||||||||||||||||||||||
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Total liabilities |
2,657 | 18,012 | (1,846 | ) | 18,823 | (1,846 | ) | 18,823 | (1,846 | ) | 18,823 | (1,846 | ) | 18,823 | ||||||||||||||||||||||||||||||||||||||||
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Convertible preferred stock |
— | 158,707 | (158,707 | ) | H |
— | (158,707 | ) | H |
— | (158,707 | ) | H |
— | (158,707 | ) | H |
— | ||||||||||||||||||||||||||||||||||||
Common stock subject to possible redemption |
58,075 | — | (6,953 | ) | D |
— | (6,953 | ) | D |
— | (6,953 | ) | D |
— | (6,953 | ) | D |
— | ||||||||||||||||||||||||||||||||||||
(51,122 | ) | E |
(51,122 | ) | E |
(51,122 | ) | E |
(51,122 | ) | E |
|||||||||||||||||||||||||||||||||||||||||||
Stockholders’ equity (deficit): |
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||
Combined Company Common stock |
— | — | 1 | B |
3 | 1 | B |
3 | 1 | B |
3 | 1 | B |
2 | ||||||||||||||||||||||||||||||||||||||||
1 | E |
1 | E |
1 | E |
1 | E |
|||||||||||||||||||||||||||||||||||||||||||||||
1 | H |
1 | H |
1 | H |
1 | H |
|||||||||||||||||||||||||||||||||||||||||||||||
— | — | F |
— | FF |
(1 | ) | FFF |
|||||||||||||||||||||||||||||||||||||||||||||||
Apexigen Common Stock |
— | 31 | (31 | ) | I |
— | (31 | ) | I |
— | (31 | ) | I |
— | (31 | ) | I |
— | ||||||||||||||||||||||||||||||||||||
Additional paid-in capital |
491 | 8,462 | 15,019 | B |
225,094 | 15,019 | B |
199,280 | 15,019 | B |
186,373 | 15,019 | B |
173,467 | ||||||||||||||||||||||||||||||||||||||||
(4,634 | ) | C |
(4,634 | ) | C |
(4,634 | ) | C |
(4,634 | ) | C |
|||||||||||||||||||||||||||||||||||||||||||
51,121 | E |
51,121 | E |
51,121 | E |
51,121 | E |
|||||||||||||||||||||||||||||||||||||||||||||||
— | (25,814 | ) | F |
(38,721 | ) | FF |
(51,627 | ) | FFF |
|||||||||||||||||||||||||||||||||||||||||||||
(5,602 | ) | G |
(5,602 | ) | G |
(5,602 | ) | G |
(5,602 | ) | G |
|||||||||||||||||||||||||||||||||||||||||||
158,706 | H |
158,706 | H |
158,706 | H |
158,706 | H |
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31 | I |
31 | I |
31 | I |
31 | I |
|||||||||||||||||||||||||||||||||||||||||||||||
1,500 | J |
1,500 | J |
1,500 | J |
1,500 | J |
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Accumulated other comprehensive income |
— | (2 | ) | — | (2 | ) | — | (2 | ) | — | (2 | ) | — | (2 | ) | |||||||||||||||||||||||||||||||||||||||
Accumulated deficit |
(2,944 | ) | (153,766 | ) | 5,602 | G |
(153,766 | ) | 5,602 | G |
(153,766 | ) | 5,602 | G |
(153,766 | ) | 5,602 | G |
(153,766 | ) | ||||||||||||||||||||||||||||||||||
(2,658 | ) | CC |
(2,658 | ) | CC |
(2,658 | ) | CC |
(2,658 | ) | CC |
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Total stockholders’ equity (deficit) |
(2,453 | ) | (145,275 | ) | 219,057 | 71,329 | 193,243 | 45,515 | 180,336 | 32,608 | 167,429 | 19,701 | ||||||||||||||||||||||||||||||||||||||||||
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Total liabilities, redeemable convertible preferred stock and stockholders’ equity (deficit) |
$ | 58,279 | $ | 31,444 | $ | 429 | $ | 90,152 | $ | (25,385 | ) | $ | 64,338 | $ | (38,292 | ) | $ | 51,431 | $ | (51,199 | ) | $ | 38,524 | |||||||||||||||||||||||||||||||
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No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
|||||||||||||||||||||||||||||||||||||||||||||||||
BCAC (Historical) |
Apexigen (Historical) |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
|||||||||||||||||||||||||||||||||||||||||||
Operating expenses: |
||||||||||||||||||||||||||||||||||||||||||||||||||||
Research and development |
$ | — | $ | 7,108 | $ | — | $ | 7,108 | — | $ | 7,108 | $ | — | $ | 7,108 | $ | — | $ | 7,108 | |||||||||||||||||||||||||||||||||
General and administrative |
2,407 | 1,986 | — | 4,393 | — | 4,393 | — | 4,393 | — | 4,393 | ||||||||||||||||||||||||||||||||||||||||||
Administrative expenses—related party |
30 | — | — | 30 | — | 30 | — | 30 | — | 30 | ||||||||||||||||||||||||||||||||||||||||||
Franchise tax expense |
20 | — | — | 20 | — | 20 | — | 20 | — | 20 | ||||||||||||||||||||||||||||||||||||||||||
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Total operating expenses |
2,457 | 9,094 | — | 11,551 | — | 11,551 | — | 11,551 | — | 11,551 | ||||||||||||||||||||||||||||||||||||||||||
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Loss from operations |
(2,457 | ) | (9,094 | ) | — | (11,551 | ) | — | (11,551 | ) | — | (11,551 | ) | — | (11,551 | ) | ||||||||||||||||||||||||||||||||||||
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Other income (expense), net |
||||||||||||||||||||||||||||||||||||||||||||||||||||
Interest income |
— | 52 | — | 52 | — | 52 | — | 52 | — | 52 | ||||||||||||||||||||||||||||||||||||||||||
Change in fair value of derivative warrant liabilities |
(3 | ) | — | — | (3 | ) | — | (3 | ) | — | (3 | ) | — | (3 | ) | |||||||||||||||||||||||||||||||||||||
Offering costs allocated to private warrants |
— | — | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||
Net gain from investments held in Trust Account |
2 | — | (2 | ) | L |
— | (2 | ) | L |
— | (2 | ) | L |
— | (2 | ) | L |
— | ||||||||||||||||||||||||||||||||||
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Total other income (expense) net |
(1 | ) | 52 | (2 | ) | 49 | (2 | ) | 49 | (2 | ) | 49 | (2 | ) | 49 | |||||||||||||||||||||||||||||||||||||
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Loss before provision for income taxes |
(2,458 | ) | (9,042 | ) | (2 | ) | (11,502 | ) | (2 | ) | (11,502 | ) | (2 | ) | (11,502 | ) | (2 | ) | (11,502 | ) | ||||||||||||||||||||||||||||||||
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|||||||||||||||||||||||||||||||||
Net loss |
$ | (2,458 | ) | $ | (9,042 | ) | $ | (2 | ) | $ | (11,502 | ) | $ | (2 | ) | $ | (11,502 | ) | $ | (2 | ) | $ | (11,502 | ) | $ | (2 | ) | $ | (11,502 | ) | ||||||||||||||||||||||
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No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
|||||||||||||||||||||||||||||||||||||||||||||||||||||
BCAC (Historical) |
Apexigen (Historical) |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
|||||||||||||||||||||||||||||||||||||||||||||||
Comprehensive loss: |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Net loss |
$ | (2,458 | ) | $ | (9,042 | ) | $ | (2 | ) | $ | (11,502 | ) | (2 | ) | $ | (11,502 | ) | $ | (2 | ) | $ | (11,502 | ) | $ | (2 | ) | $ | (11,502 | ) | |||||||||||||||||||||||||||
Other comprehensive loss |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Unrealized loss on marketable securities |
— | 2 | — | 2 | — | 2 | — | 2 | — | 2 | ||||||||||||||||||||||||||||||||||||||||||||||
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|||||||||||||||||||||||||||||||||||||
Comprehensive loss |
$ | (2,458 | ) | $ | (9,040 | ) | $ | (2 | ) | $ | (11,500 | ) | $ | (2 | ) | $ | (11,500 | ) | $ | (2 | ) | $ | (11,500 | ) | $ | (2 | ) | $ | (11,500 | ) | ||||||||||||||||||||||||||
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|||||||||||||||||||||||||||||||||||||
Weighted average shares outstanding—Combined Company common stock—basic and diluted |
— | — | — | M |
26,502,169 | — | M |
23,971,373 | — | M |
22,531,495 | — | M |
20,980,577 | ||||||||||||||||||||||||||||||||||||||||||
Basic and diluted net loss per share—Combined Company common stock |
— | — | — | M |
$ | (0.43 | ) | — | M |
$ | (0.48 | ) | — | M |
$ | (0.51 | ) | — | M |
$ | (0.55 | ) | ||||||||||||||||||||||||||||||||||
Weighted average shares outstanding—Apexigen common stock—basic and diluted |
— | 31,395,518 | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||||
Basic and diluted net loss per share —Apexigen |
— | $ | (0.29 | ) | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||
Weighted average shares outstanding—BCAC redeemable common stock—basic and diluted |
5,750,000 | — | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||||
Basic and diluted net loss per share, BCAC redeemable common stock |
$ | (0.33 | ) | — | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||
Weighted average shares outstanding—BCAC non-redeemable common stock—basic and diluted |
1,684,500 | — | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||||
Basic and diluted net loss per share, non-redeemable common stock |
$ | (0.33 | ) | — | — | — | — | — | — | — | — | — |
No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
|||||||||||||||||||||||||||||||||||||||||||||||||||||
BCAC (Historical) |
Apexigen (Historical) |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
|||||||||||||||||||||||||||||||||||||||||||||||
Operating expenses: |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Research and development |
$ | — | $ | 21,664 | $ | — | $ | 21,664 | — | $ | 21,664 | $ | — | $ | 21,664 | $ | — | $ | 21,664 | |||||||||||||||||||||||||||||||||||||
General and administrative |
411 | 7,293 | 4,800 | N |
12,504 | 4,800 | N |
12,504 | 4,800 | N |
12,504 | 4,800 | N |
12,504 | ||||||||||||||||||||||||||||||||||||||||||
Administrative expenses—related party |
110 | — | — | 110 | — | 110 | — | 110 | — | 110 | ||||||||||||||||||||||||||||||||||||||||||||||
Franchise tax expense |
82 | — | — | 82 | — | 82 | — | 82 | — | 82 | ||||||||||||||||||||||||||||||||||||||||||||||
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Total operating expenses |
603 | 28,957 | 4,800 | 34,360 | 4,800 | 34,360 | 4,800 | 34,360 | 4,800 | 34,360 | ||||||||||||||||||||||||||||||||||||||||||||||
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Loss from operations |
(603 | ) | (28,957 | ) | (4,800 | ) | (34,360 | ) | (4,800 | ) | (34,360 | ) | (4,800 | ) | (34,360 | ) | (4,800 | ) | (34,360 | ) | ||||||||||||||||||||||||||||||||||||
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Other income (expense), net |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Interest income |
— | 41 | — | 41 | — | 41 | — | 41 | — | 41 | ||||||||||||||||||||||||||||||||||||||||||||||
Change in fair value of derivative warrant liabilities |
110 | — | — | 110 | — | 110 | — | 110 | — | 110 | ||||||||||||||||||||||||||||||||||||||||||||||
Offering costs allocated to private warrants |
(1 | ) | — | — | (1 | ) | — | (1 | ) | — | (1 | ) | — | (1 | ) | |||||||||||||||||||||||||||||||||||||||||
Net gain from investments held in Trust Account |
10 | — | (10 | ) | O |
— | (10 | ) | O |
— | (10 | ) | O |
— | (10 | ) | O |
— | ||||||||||||||||||||||||||||||||||||||
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Total other income (expense) net |
119 | 41 | (10 | ) | 150 | (10 | ) | 150 | (10 | ) | 150 | (10 | ) | 150 | ||||||||||||||||||||||||||||||||||||||||||
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Loss before provision for income taxes |
(484 | ) | (28,916 | ) | (4,810 | ) | (34,210 | ) | (4,810 | ) | (34,210 | ) | (4,810 | ) | (34,210 | ) | (4,810 | ) | (34,210 | ) | ||||||||||||||||||||||||||||||||||||
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Net loss |
$ | (484 | ) | $ | (28,916 | ) | $ | (4,810 | ) | (34,210 | ) | $ | (4,810 | ) | $ | (34,210 | ) | $ | (4,810 | ) | $ | (34,210 | ) | $ | (4,810 | ) | $ | (34,210 | ) | |||||||||||||||||||||||||||
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No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
|||||||||||||||||||||||||||||||||||||||||||||||||||||
BCAC (Historical) |
Apexigen (Historical) |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
Transaction Accounting Adjustments (Note 2) |
Pro Forma Combined |
|||||||||||||||||||||||||||||||||||||||||||||||
Comprehensive loss: |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Net loss |
$ | (484 | ) | $ | (28,916 | ) | $ | (4,810 | ) | $ | (34,210 | ) | $ | (4,810 | ) | $ | (34,210 | ) | $ | (4,810 | ) | $ | (34,210 | ) | $ | (4,810 | ) | $ | (34,210 | ) | ||||||||||||||||||||||||||
Other comprehensive loss |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Unrealized loss on marketable securities |
— | (7 | ) | — | (7 | ) | — | (7 | ) | — | (7 | ) | — | (7 | ) | |||||||||||||||||||||||||||||||||||||||||
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Comprehensive loss |
$ | (484 | ) | $ | (28,923 | ) | $ | (4,810 | ) | $ | (34,217 | ) | $ | (4,810 | ) | $ | (34,217 | ) | $ | (4,810 | ) | $ | (34,217 | ) | $ | (4,810 | ) | $ | (34,217 | ) | ||||||||||||||||||||||||||
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|||||||||||||||||||||||||||||||||||||
Weighted average shares outstanding—Combined Company common stock—basic and diluted |
— | — | — | P |
27,139,864 | — | P |
24,264,864 | — | P |
22,652,884 | — | P |
20,929,864 | ||||||||||||||||||||||||||||||||||||||||||
Basic and diluted net loss per share—Combined Company common stock |
— | — | — | P |
$ | (1.26 | ) | — | P |
$ | (1.41 | ) | — | P |
$ | (1.51 | ) | — | P |
$ | (1.63 | ) | ||||||||||||||||||||||||||||||||||
Weighted average shares outstanding of Apexigen common stock—basic and diluted |
— | 30,901,032 | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||||
Basic and diluted net loss per share—Apexigen |
— | $ | (0.94) | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||||||||||||||||||||
Weighted average shares outstanding—BCAC redeemable common stock—basic and diluted |
5,245,890 | — | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||||
Basic and diluted net loss per share, BCAC redeemable common stock |
$ | (0.07 | ) | — | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||
Weighted average shares outstanding—BCAC non-redeemable common stock—basic and diluted |
1,646,407 | — | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||||||||||||||||||||
Basic and diluted net loss per share, non-redeemable common stock |
$ | (0.07 | ) | — | — | — | — | — | — | — | — | — |
(A) | Reflects the liquidation and reclassification of $58.1 million of investments held in the Trust Account to cash and cash equivalents that becomes available for general use by Combined Company following the Closing under the four redemption scenarios. |
(B) | Reflects the gross proceeds of $15.0 million from the issuance and sale of 1,502,000 units to PIPE investors at $10.00 per unit that are comprised of the issuance of 1,502,000 shares of Combined Company common stock and the issuance of 751,000 PIPE Warrants under the four redemption scenarios. |
(C) | Reflects the preliminary estimated direct and incremental cash transaction costs to be incurred by Apexigen related to the Merger of approximately $4.6 million. Transaction expenses expected to be incurred by Apexigen include amounts payable to its financial advisor, professional services (including legal, audit and consulting), a directors and officers’ insurance tail policy and other fees reflected in the unaudited pro forma condensed combined balance sheet. Apexigen has reflected the direct and incremental transaction costs related to the Merger as a reduction to the Combined Company’s additional paid-in capital. As of March 31, 2022, Apexigen had deferred incremental transaction costs incurred of $1.3 million, of which $0.7 million were unpaid in accounts payable and $0.4 million were unpaid in accrued expenses. |
(CC) | Reflects the preliminary estimated direct and incremental cash transaction costs incurred by BCAC related to the Merger of approximately $4.8 million reflected in the unaudited pro forma condensed combined balance sheet. As of March 31, 2022, BCAC has incurred and expensed $2.1 million, of which $2.1 million was unpaid in accrued expenses, and $2.7 million has been reflected as additional accumulated deficit as this represents the BCAC estimated direct and incremental cash transaction costs to be incurred in future reporting periods through the Closing. Transaction costs expected to be incurred by BCAC include professional services (including legal, financial, printer, audit, consulting, and proxy solicitation), a capital markets advisory fee payable to Brookline Capital Markets, an affiliate of BCAC’s sponsor, a directors and officers’ insurance tail policy, and other related expenses. |
(D) | Reflects the April Partial Redemption. |
(E) | Reflects the reclassification of the remaining BCAC Common Stock subject to possible redemption to permanent equity assuming no additional redemptions and immediate conversion of the remaining 5,061,592 shares of BCAC Common Stock into shares of Combined Company Common Stock on a one-to-one-basis. |
(F) | Reflects the redemption of an additional 2,530,796 shares of Combined Company common stock for $25.8 million allocated to the Combined Company common stock and additional paid-in-capital |
(FF) | Reflects the redemption of an additional 3,796,194 shares of Combined Company common stock for $38.7 million allocated to the Combined Company common stock and additional paid-in-capital |
(FFF) | Reflects the maximum redemption of 5,061,592 shares of Combined Company common stock for $51.6 million allocated to Combined Company common stock and additional paid-in capital using par value of $0.0001 per share at an assumed redemption price of $10.20 per share under the Maximum Redemptions scenario. |
(G) | Reflects the elimination of BCAC’s historical retained earnings of $2.9 million and future projected BCAC estimated direct and incremental transaction costs that will be incurred and expensed through the Closing of $2.7 million with a corresponding adjustment to additional paid-in capital for the Combined Company in connection with the reverse recapitalization at the closing under the four redemption scenarios. |
(H) | Reflects the conversion of Apexigen convertible preferred stock into Combined Company common stock upon the Closing for the four redemption scenarios. |
(I) | Reflects the difference in par value between Apexigen of $0.001 value per share and BCAC of $0.0001 per share under the four redemption scenarios. The par value of the Combined Company common stock will be $0.0001 per share. |
(J) | Reflects deferred issuance costs of $3.1 million associated with the Lincoln Park Purchase Agreement under the four redemption scenarios that is comprised of the following: 1) $1.5 million that represents the issuance of 150,000 shares of Combined Company common stock at Closing using an assumed price of $10.00 per share, 2) commitment to issue $1.5 million of additional shares of Combined Company common stock ninety 90 days after Closing, subject to a maximum of 500,000 shares, and 3) $50,000 recorded in prepaid and other assets for cash paid to Lincoln Park as of March 31, 2022. |
(K) | Reflects the net impact of zero on cash as BCAC received cash of $0.6 million from the Sponsor related to the Extension Note and Working Capital Note during May 2022 and the Combined Company will repay the Extension Note and Working Capital Notes of $0.6 million upon Closing. |
(L) | Represents the elimination of investment income related to the investments held in the BCAC Trust Account under the four redemption scenarios. |
(M) | The calculation of weighted average shares outstanding for basic and diluted net loss per share assumes that the Merger had occurred on January 1, 2021, and the calculation of weighted average shares outstanding for basic and diluted net loss per share assumes that the shares have been outstanding for the entire period presented. |
(N) | Reflects $4.8 million of estimated BCAC direct and incremental transaction costs that will be incurred and expensed through the Closing under the four redemption scenarios. |
(O) | Represents the elimination of investment income related to the investments held in the BCAC Trust Account under the four redemption scenarios. |
(P) | The calculation of weighted average shares outstanding for basic and diluted net loss per share assumes that the Merger occurred on January 1, 2021, and the calculation of weighted average shares outstanding for basic and diluted net loss per share assumes that the shares have been outstanding for the entire period presented. |
Three Months Ended March 31, 2022 |
||||||||||||||||
No Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
|||||||||||||
(in thousands, except share and per share data) |
||||||||||||||||
Pro forma net loss |
$ | (11,502 | ) | $ | (11,502 | ) | $ | (11,502 | ) | $ | (11,502 | ) | ||||
Pro forma weighted average shares outstanding, basic and diluted |
26,502,169 | 23,971,373 | 22,531,495 | 20,980,577 | ||||||||||||
Pro forma net loss per share, basic and diluted - common stock |
$ | (0.43 | ) | $ | (0.48 | ) | $ | (0.51 | ) | $ | (0.55 | ) | ||||
Pro forma weighted average shares calculation, basic and diluted: |
||||||||||||||||
BCAC Public Stockholders |
5,061,592 | 2,530,796 | 1,265,398 | — | ||||||||||||
Sponsor and Representative |
1,684,500 | 1,684,500 | 1,510,020 | 1,224,500 | ||||||||||||
Former Apexigen equityholders(1), (2) |
18,104,077 | 18,104,077 | 18,104,077 | 18,104,077 | ||||||||||||
PIPE Investors |
1,502,000 | 1,502,000 | 1,502,000 | 1,502,000 | ||||||||||||
Lincoln Park |
150,000 | 150,000 | 150,000 | 150,000 | ||||||||||||
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26,502,169 | 23,971,373 | 22,531,495 | 20,980,577 | |||||||||||||
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|
(1) | Represents the amount of shares of the Combined Company to be issued as Closing Merger Consideration in respect of 31,395,489 shares of Apexigen Common Stock and in respect of 145,130,628 shares of Apexigen Preferred Stock, in each case, issued and outstanding as of March 31, 2022, and in each case multiplied by the Company’s estimated Exchange Ratio, which is approximately 0.1026. |
(2) | Assumes for purposes of this calculation that the Aggregate Exercise Price is equal to approximately $10.7 million, which represents the approximate Aggregate Exercise Price as of March 31, 2022. If all Apexigen Options were to be exercised before the Closing, the Company estimates that the Exchange Ratio would decrease to approximately 0.0051, which would result in approximately 0.9 million fewer shares of the Combined Company to be issued as Closing Merger Consideration to the former Apexigen equityholders and an increase in the pro forma net loss per share of approximately $(0.02). |
Year Ended December 31, 2021 |
||||||||||||||||
No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
|||||||||||||
(in thousands, except share and per share data) |
||||||||||||||||
Pro forma net loss |
$ | (34,210 | ) | $ | (34,210 | ) | $ | (34,210 | ) | $ | (34,210 | ) | ||||
Pro forma weighted average shares outstanding, basic and diluted |
27,139,864 | 24,264,864 | 22,652,884 | 20,929,864 | ||||||||||||
Pro forma net loss per share, basic and diluted - common stock |
$ | (1.26 | ) | $ | (1.41 | ) | $ | (1.51 | ) | $ | (1.63 | ) | ||||
Pro forma weighted average shares calculation, basic and diluted: |
||||||||||||||||
BCAC Public Stockholders |
5,750,000 | 2,875,000 | 1,437,500 | — | ||||||||||||
Sponsor and Representative |
1,684,500 | 1,684,500 | 1,510,020 | 1,224,500 | ||||||||||||
Former Apexigen equityholders(3), (4) |
18,053,364 | 18,053,364 | 18,053,364 | 18,053,364 | ||||||||||||
PIPE Investors |
1,502,000 | 1,502,000 | 1,502,000 | 1,502,000 | ||||||||||||
Lincoln Park |
150,000 | 150,000 | 150,000 | 150,000 | ||||||||||||
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|||||||||
27,139,864 | 24,264,864 | 22,652,884 | 20,929,864 | |||||||||||||
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|
(3) | Represents the amount of shares of the Combined Company to be issued as Closing Merger Consideration in respect of 31,070,665 shares of Apexigen Common Stock and in respect of 145,130,628 shares of |
Apexigen Preferred Stock, in each case, outstanding as of December 31, 2021, and in each case multiplied by the Company’s estimated Exchange Ratio, which is approximately 0.1026. |
(4) | Assumes for purposes of this calculation that the Aggregate Exercise Price is equal to approximately $9.6 million, which represents the approximate Aggregate Exercise Price as of December 31, 2021. If all Apexigen Options were to be exercised before the Closing, the Company estimates that the Exchange Ratio would decrease to approximately 0.0045, which would result in approximately 0.8 million fewer shares of the Combined Company to be issued as Closing Merger Consideration to the former Apexigen equityholders and an increase in the pro forma net loss per share of approximately $(0.05). |
No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
|||||||||||||
Public Warrants (former BCAC) |
2,875,000 | 2,875,000 | 2,875,000 | 2,875,000 | ||||||||||||
PIPE Warrants (PIPE Issuance) |
751,000 | 751,000 | 751,000 | 751,000 | ||||||||||||
Private Warrants (former BCAC) |
123,500 | 123,500 | 123,500 | 123,500 | ||||||||||||
Stock Options (former Apexigen) |
3,451,110 | 3,451,110 | 3,451,110 | 3,451,110 | ||||||||||||
Warrants (former Apexigen) |
13,375 | 13,375 | 13,375 | 13,375 | ||||||||||||
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|||||||||
7,213,985 | 7,213,985 | 7,213,985 | 7,213,985 | |||||||||||||
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|
• | No Additional Redemptions: |
• | 50% Redemptions: |
• | 75% Redemptions: |
• | Maximum Redemptions: |
Pro Forma Combined |
||||||||||||||||||||||||
BCAC (Historical) |
Apexigen (Historical) |
No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
|||||||||||||||||||
(In thousands, except share and per share amounts) |
||||||||||||||||||||||||
Three Months Ended March 31, 2022 |
||||||||||||||||||||||||
Book value per share - basic and diluted |
n/a | $ | (4.63 | ) | $ | 2.69 | $ | 1.90 | $ | 1.45 | $ | 0.94 | ||||||||||||
Net loss |
$ | (2,458 | ) | $ | (9,042 | ) | $ | (11,502 | ) | $ | (11,502 | ) | $ | (11,502 | ) | $ | (11,502 | ) | ||||||
Weighted average shares outstanding - basic and diluted |
31,395,518 | 26,502,169 | 23,971,373 | 22,531,495 | 20,980,577 | |||||||||||||||||||
Basic and diluted net loss per share |
$ | (0.29 | ) | $ | (0.43 | ) | $ | (0.48 | ) | $ | (0.51 | ) | $ | (0.55 | ) | |||||||||
Weighted average shares outstanding - redeemable common stock |
5,750,000 | |||||||||||||||||||||||
Basic and diluted net loss per share, redeemable common stock |
$ | (0.33 | ) | |||||||||||||||||||||
Weighted average shares outstanding - non-redeemable common stock |
1,684,500 | |||||||||||||||||||||||
Basic and diluted net loss per share, non-redeemable common stock |
$ | (0.33 | ) |
Pro Forma Combined |
||||||||||||||||||||||||
BCAC (Historical) |
Apexigen (Historical) |
No Additional Redemptions |
50% Redemptions |
75% Redemptions |
Maximum Redemptions |
|||||||||||||||||||
(In thousands, except share and per share amounts) |
||||||||||||||||||||||||
Year Ended December 31, 2021 |
||||||||||||||||||||||||
Book value per share - basic and diluted |
n/a | $ | (4.40 | ) | n/a | n/a | n/a | n/a | ||||||||||||||||
Net loss |
$ | (484 | ) | $ | (28,916 | ) | $ | (34,210 | ) | $ | (34,210 | ) | $ | (34,210 | ) | $ | (34,210 | ) | ||||||
Weighted average shares outstanding - basic and diluted |
30,901,032 | 27,139,864 | 24,264,864 | 22,652,884 | 20,929,864 | |||||||||||||||||||
Basic and diluted net loss per share |
$ | (0.94 | ) | $ | (1.26 | ) | $ | (1.41 | ) | $ | (1.51 | ) | $ | (1.63 | ) | |||||||||
Weighted average shares outstanding - redeemable common stock |
5,245,890 | |||||||||||||||||||||||
Basic and diluted net loss per share, redeemable common stock |
$ | (0.07 | ) | |||||||||||||||||||||
Weighted average shares outstanding - non-redeemable common stock |
1,646,407 | |||||||||||||||||||||||
Basic and diluted net loss per share, non-redeemable common stock |
$ | (0.07 | ) |
(1) | The Business Combination Proposal-To consider and vote upon a proposal to approve the Business Combination Agreement, in the form attached hereto as Annex A, and the Business Combination; |
(2) | The Charter Proposals-To consider and vote upon two proposals to adopt the Proposed Charter, in the form attached hereto as Annex B; |
(3) | The Director Election Proposal-To consider and vote upon a proposal to elect seven directors to serve on the Combined Company Board until the first annual meeting of stockholders following the effectiveness of the Proposed Charter, in the case of Class I directors, the second annual meeting of stockholders following the effectiveness of the Proposed Charter, in the case of Class II directors, and the third annual meeting of stockholders following the effectiveness of the Proposed Charter, in the case of Class III directors, and, in each case, until their respective successors are duly elected and qualified; |
(4) | The Nasdaq Proposal-To consider and vote upon a proposal to approve, for purposes of complying with applicable listing rules of Nasdaq: (i) the issuance of shares of BCAC Common Stock to Apexigen stockholders pursuant to the Business Combination Agreement; (ii) the issuance of shares of BCAC Common Stock to the PIPE Investors pursuant to the Subscription Agreements (including upon exercise of the PIPE Warrants issued pursuant to the Subscription Agreements); and (iii) the issuance of shares of BCAC Common Stock and Combined Company common stock to Lincoln Park pursuant to the Lincoln Park Purchase Agreement; |
(5) | The Equity Incentive Plan Proposal-To consider and vote upon a proposal to approve and adopt the 2022 Equity Incentive Plan, in the form attached hereto as Annex H; |
(6) | The ESPP Proposal-To consider and vote upon a proposal to approve and adopt the 2022 Employee Stock Purchase Plan, in the form attached hereto as Annex I; |
(7) | The Adjournment Proposal-To consider and vote upon a proposal to approve the adjournment of the Stockholders’ Meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event that there are insufficient votes for the approval of the Business Combination Proposal, the Charter Proposals, the Director Election Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal or the ESPP Proposal. |
• | If the Business Combination with Apexigen or another business combination is not consummated within the Completion Window, BCAC will cease all operations except for the purpose of winding up, redeeming 100% of the outstanding Public Shares for cash and, subject to the approval of its remaining stockholders and the BCAC Board, dissolving and liquidating. In such event, the 1,437,500 Founder Shares held by the Sponsor and the Representative, which were acquired for a purchase price of approximately $0.017 per share, would be worthless because holders of the Founder Shares are not entitled to participate in any redemption or distribution with respect to such shares. The 1,380,000 Founder Shares held by the Sponsor had an aggregate market value of $[●] based upon the closing price of $[●] per share of BCAC Common Stock on the Nasdaq on the Record Date. Each of BCAC’s directors is a member of the Sponsor and therefore will have an economic interest in the Founder Shares held by the Sponsor. |
• | Given the differential in the purchase price that our Sponsor paid for the Founder Shares as compared to the price of the BCAC units sold in the BCAC IPO and the substantial number of shares of Combined Company common stock that our Sponsor will receive upon conversion of the Founder Shares in connection with the Business Combination, our Sponsor and its affiliates may earn a positive rate of return on their investment even if the Combined Company common stock trades below the price initially paid for the BCAC units in the BCAC IPO and the Public Stockholders experience a negative rate of return following the completion of the Business Combination. Thus, our Sponsor and its affiliates may have more of an economic incentive for us to, rather than liquidate if we fail to complete our initial business combination by the Completion Window, enter into an initial business combination on potentially less favorable terms with a potentially less favorable, riskier, weaker-performing or financially unstable business, or an entity lacking an established record of revenues or earnings, than would be the case if such parties had paid the full offering price for their Founder Shares. |
• | The Sponsor purchased an aggregate of 247,000 placement units from BCAC for an aggregate purchase price of $2,470,000 (or $10.00 per units). This purchase took place on a private placement basis simultaneously with the consummation of the BCAC IPO. A portion of the proceeds BCAC received from this purchase were placed in the Trust Account. Such units had an aggregate market value of approximately $[●] based upon the closing price of $[●] per units on the Nasdaq on [●], 2022, the Record Date. The placement units will become worthless if BCAC does not consummate a business combination within the Completion Window. |
• | Samuel Wertheimer will become a director of the Combined Company after the Closing. As such, in the future he may receive any cash fees, stock options or stock awards that the Board determines to pay to its directors. |
• | BCAC’s directors and officers, and their affiliates are entitled to reimbursement of out-of-pocket |
• | In connection with the approval of the Extension Amendment (as defined below), the Sponsor has agreed to contribute to BCAC as a loan the Additional Contributions. The amount of the Additional Contributions will not bear interest and will be repayable by BCAC to the Sponsor upon the Closing. |
• | The continued indemnification of current directors and officers and the continuation of directors’ and officers’ liability insurance. |
• | In the event of the liquidation of the Trust Account, the Sponsor has agreed to indemnify and hold harmless BCAC against any and all losses, liabilities, claims, damages and expenses to which BCAC may become subject as a result of any claim by (i) any third party for services rendered or products sold to BCAC or (ii) a prospective target business with which BCAC has entered into an acquisition agreement, provided that such indemnification of BCAC by the Sponsor shall apply only to the extent necessary to ensure that such claims by a third party for services rendered or products sold to BCAC or a target do not reduce the amount of funds in the Trust Account to below (i) $10.00 per share of BCAC Common Stock or (ii) such lesser amount per share of BCAC Common Stock held in the Trust Account due to reductions in the value of the trust assets as of the date of the liquidation of the Trust Account, in each case, net of the amount of interest earned on the property in the Trust Account, which may be withdrawn to pay taxes and expenses related to the administration of the Trust Account, except as to any claims by a third party (including a target) who executed a waiver of any and all rights to seek access to the Trust Account and except as to any claims under BCAC’s indemnity of the underwriters of the BCAC IPO against certain liabilities, including liabilities under the Securities Act. If BCAC consummates the Business Combination, on the other hand, BCAC will be liable for all such claims. |
• | The Sponsor has agreed not to transfer, assign, or sell any of its Founder Shares until 180 days following the consummation of the Business Combination, subject to certain customary exceptions. |
• | Subject to certain limited exceptions, the placement units will not be transferable until 30 days following the completion of the Business Combination. |
• | For a period of six years after the Closing Date, BCAC shall defend, indemnify and hold harmless the Sponsor, its affiliates, and their respective present and former directors and officers against any costs or expenses, judgments, fines, losses, claims, damages or liabilities incurred in connection with any action |
by any stockholder of BCAC who has not exercised Redemption Rights arising from Sponsor’s ownership of equity securities of BCAC, or its control or ability to influence BCAC, and further arising out of or pertaining to the transactions, actions, and investments contemplated by the Business Combination Agreement or any Ancillary Agreements. |
• | BCAC will pay Brookline Capital Markets, an affiliate of our Sponsor for which certain of our officers provide services, $200,000 to act as BCAC’s financial advisor, investment banker, and consultant in connection with the Business Combination. The services provided by Brookline Capital Markets included assessment of the market environment as well as BCAC’s relative positioning within the marketplace, assessment of BCAC’s stockholder base, potential target investors and potential marketing strategies for its securities, assistance in the preparation of marketing materials for BCAC, and other customary financial advisory services and investment banking services in connection with BCAC’s contemplated business combination transaction. While Brookline Capital Markets provided assistance to BCAC in the preparation of our initial terms proposed to Apexigen, it did not otherwise participate in any discussions among the parties. |
• | In the event that the BCAC Related Funds Amount at Closing is less than $20,000,000, then that number of Sponsor Shares equal to (x) one minus the quotient of the BCAC Related Funds Amount divided by $20,000,000, multiplied by (y) 1/3 of the total number of Sponsor Shares, shall be deemed automatically forfeited and cancelled without any further actions by the Sponsor or any other person, and such surrendered shares will be recorded as cancelled by the Combined Company. |
• | via the Internet; |
• | by telephone; |
• | by submitting a properly executed proxy card or voting instruction form by mail; or |
• | electronically at the Stockholders’ Meeting. |
1. | sending another proxy card with a later date; |
2. | notifying BCAC’s Secretary in writing before the Stockholders’ Meeting that you have revoked your proxy; or |
3. | attending the Stockholders’ Meeting and voting electronically by visiting https://www.cstproxy.com/bcac/sm2022 and entering the control number found on your proxy card, instruction form or notice you previously received. Attendance at the Stockholders’ Meeting will not, in and of itself, revoke a proxy. |
• | The 2022 Plan will continue until terminated by the Combined Company Board or its compensation committee. |
• | The 2022 Plan provides for the grant of stock options, both incentive stock options and nonqualified stock options, stock appreciation rights, restricted stock, restricted stock units (“RSUs”) and performance awards. |
• | A number of shares of BCAC Common Stock will be authorized for issuance pursuant to awards under the 2022 Plan equal to (i) 12% of the shares of the Combined Company’s common stock as of immediately after the closing (rounded up to the nearest whole share), which will be a maximum of 3,180,260 shares of BCAC Common Stock, plus (ii) any shares of BCAC Common Stock subject to assumed awards and that after the date of the Closing are terminated without being exercised in full, are tendered to or withheld by Combined Company to satisfy exercise price or tax withholding obligations, or are forfeited to or repurchased by Combined Company due to failure to vest (provided that the maximum number of shares that may be added to the 2022 Plan pursuant to the foregoing clause (ii) is [●] shares). |
• | The 2022 Plan provides for an automatic share reserve increase feature, whereby the share reserve will be increased automatically on the first day of each fiscal year beginning with the 2023 fiscal year, in an amount equal to the least of (i) 15% of the shares of the Combined Company’s common stock as of immediately after the closing (rounded up to the nearest whole share), which will be a maximum of 3,975,325 shares, (ii) a number of shares equal to 5% of the total number of shares of all classes of Combined Company common stock outstanding on the last day of the immediately preceding fiscal year, and (iii) a lesser number of shares as determined by the administrator of the 2022 Plan. The automatic share reserve feature will cease immediately after the increase on the first day of the 2032 fiscal year. |
• | The 2022 Plan will be administered by the Combined Company Board or, if designated by the Combined Company Board, the compensation committee of the Combined Company Board. |
• | 15% of the shares of the Combined Company’s common stock as of immediately after the closing (rounded up to the nearest whole share), which will be a maximum of 3,975,325 shares of Combined Company common stock; |
• | a number of shares of Combined Company common stock equal to 5% of the total number of shares of all classes of Combined Company common stock outstanding as of the last day of the immediately preceding fiscal year; or |
• | such number of shares of Combined Company common stock as the administrator of the 2022 Plan may determine no later than the last day of Combined Company’s immediately preceding fiscal year. |
Name |
Age |
Title | ||||
Samuel P. Wertheimer, Ph.D. |
62 | Chief Executive Officer and Chairman | ||||
Scott A Katzmann |
66 | President and Director | ||||
Patrick A. Sturgeon |
45 | Chief Financial Officer | ||||
James N. Hauslein |
63 | Director | ||||
Elgar Peerschke |
65 | Director | ||||
Tito A. Serafini, Ph.D. |
58 | Director |
• | the appointment, compensation, retention, replacement, and oversight of the work of the independent registered public accounting firm engaged by us; |
• | pre-approving all audit and permitted non-audit services to be provided by the independent registered public accounting firm engaged by us, and establishing pre-approval policies and procedures; |
• | setting clear hiring policies for employees or former employees of the independent registered public accounting firm, including but not limited to, as required by applicable laws and regulations; |
• | setting clear policies for audit partner rotation in compliance with applicable laws and regulations; |
• | obtaining and reviewing a report, at least annually, from the independent registered public accounting firm describing (i) the independent registered public accounting firm’s internal quality-control procedures, (ii) any material issues raised by the most recent internal quality-control review, or peer review, of the audit firm, or by any inquiry or investigation by governmental or professional authorities within the preceding five years respecting one or more independent audits carried out by the firm and any steps taken to deal with such issues and (iii) all relationships between the independent registered public accounting firm and us to assess the independent registered public accounting firm’s independence; |
• | reviewing and approving any related party transaction required to be disclosed pursuant to Item 404 of Regulation S-K promulgated by the SEC prior to us entering into such transaction; and |
• | reviewing with management, the independent registered public accounting firm, and our legal advisors, as appropriate, any legal, regulatory or compliance matters, including any correspondence with regulators or government agencies and any employee complaints or published reports that raise material issues regarding our financial statements or accounting policies and any significant changes in accounting standards or rules promulgated by the Financial Accounting Standards Board, the SEC or other regulatory authorities. |
• | reviewing and approving on an annual basis the corporate goals and objectives relevant to our Chief Executive Officer’s compensation, if any is paid by us, evaluating our Chief Executive Officer’s performance in light of such goals and objectives and determining and approving the remuneration (if any) of our Chief Executive Officer based on such evaluation; |
• | reviewing and approving on an annual basis the compensation, if any is paid by us, of all of our other officers; |
• | reviewing on an annual basis our executive compensation policies and plans; |
• | implementing and administering our incentive compensation equity-based remuneration plans; |
• | assisting management in complying with our proxy statement and annual report disclosure requirements; |
• | approving all special perquisites, special cash payments and other special compensation and benefit arrangements for our officers and employees; |
• | if required, producing a report on executive compensation to be included in our annual proxy statement; and |
• | reviewing, evaluating and recommending changes, if appropriate, to the remuneration for directors. |
• | each person who is, or is expected to be, the beneficial owner of more than 5% of the outstanding shares of BCAC Common Stock or Combined Company common stock, as applicable; |
• | each of BCAC’s current directors and executive officers; |
• | each person who will become a director or executive officer of the Combined Company; and |
• | all directors and officers of BCAC, as a group, and the Combined Company, as a group. |
Before the Business Combination |
After the Business Combination |
|||||||||||||||||||||||
Number of Shares |
% |
No Additional Redemptions |
Maximum Redemptions |
|||||||||||||||||||||
Name and Address of Beneficial Owner |
Number of Shares |
% |
Number of Shares |
% |
||||||||||||||||||||
Five Percent Holders of BCAC |
||||||||||||||||||||||||
Brookline Capital Holdings, LLC (1)(2) |
1,750,500 | 25.5 | % | 1,750,500 | 6.6 | % | 1,290,500 | 6.1 | % | |||||||||||||||
Periscope Capital Inc. (3) |
417,000 | 6.2 | % | 417,000 | 1.6 | % | — | — | ||||||||||||||||
Kepos Capital LP (4) |
382,289 | 5.7 | % | 382,289 | 1.4 | % | — | — | ||||||||||||||||
Directors and Executive Officers of BCAC |
||||||||||||||||||||||||
Samuel P. Wertheimer, Ph.D. (1) |
— | — | — | — | — | — | ||||||||||||||||||
Scott A Katzmann (1) |
— | — | — | — | — | — | ||||||||||||||||||
Patrick A. Sturgeon (1) |
— | — | — | — | — | — | ||||||||||||||||||
James N. Hauslein (1) |
— | — | — | — | — | — | ||||||||||||||||||
Elgar Peerschke (1) |
— | — | — | — | — | — | ||||||||||||||||||
Tito A. Serafini, Ph.D. (1) |
— | — | — | — | — | — | ||||||||||||||||||
All executive officers and directors as a group prior to the business combination (6 individuals) |
— | — | — | — | — | — | ||||||||||||||||||
Five Percent Holders Post-Business Combination |
||||||||||||||||||||||||
Decheng Capital China Life Sciences USD Fund II, L.P. (5) |
— | — | 1,896,576 | 7.2 | % | 1,896,576 | 9.0 | % | ||||||||||||||||
3E Bioventures Capital, L.P. (6) |
— | — | 1,142,659 | 4.3 | % | 1,142,659 | 5.4 | % | ||||||||||||||||
Oceanpine Capital Limited (7) |
— | — | 1,067,659 | 4.0 | % | 1,067,659 | 5.1 | % | ||||||||||||||||
Directors and Executive Officers of Apexigen (8) |
||||||||||||||||||||||||
Xiaodong Yang, M.D., Ph.D. |
— | — | 1,721,060 | 6.5 | % | 1,721,060 | 8.2 | % | ||||||||||||||||
Frank Hsu, M.D. |
— | — | — | — | — | — | ||||||||||||||||||
Francis Sarena |
— | — | — | — | — | — | ||||||||||||||||||
Amy Wong |
— | — | 405,704 | 1.5 | % | 405,704 | 1.9 | % | ||||||||||||||||
Herb Cross |
— | — | 22,036 | * | 22,036 | * | ||||||||||||||||||
Jakob Dupont, M.D. |
— | — | 20,054 | * | 20,054 | * | ||||||||||||||||||
Gordon Ringold, Ph.D. |
— | — | 32,060 | * | 32,060 | * | ||||||||||||||||||
Scott Smith |
— | — | 23,458 | * | 23,458 | * | ||||||||||||||||||
Dan Zabrowski, Ph.D. |
— | — | — | — | — | — | ||||||||||||||||||
All executive officers and directors as a group following the business combination (10 individuals) |
— | — | 2,224,372 | 8.4 | % | 2,224,372 | 10.6 | % |
* | Less than 1% |
(1) | The business address of each of these entities and individuals is at 280 Park Avenue, Suite 43W, New York, NY 10017. |
(2) | Interests shown consist of Founder Shares as well as Private Placement Shares and 123,500 Private Placement Warrants that are exercisable within 60 days of the closing of the Business Combination. Brookline Capital Holdings, LLC, our Sponsor, is the record holder of the shares and warrants reported herein. William Buchanan, Jr., who serves as the Managing Partner of Brookline Capital Markets is the managing member of our Sponsor. Consequently, such person may be deemed the beneficial owner of the shares and warrants held by our Sponsor and have voting and dispositive control over such securities. Such person disclaims beneficial ownership of any shares or warrants other than to the extent he may have a |
pecuniary interest therein, directly or indirectly. Each of our officers, directors and advisors is a direct or indirect member of our Sponsor. |
(3) | Based on the Form 13G filed by Periscope Capital Inc., as filed with the SEC on February 14, 2022. The business address reported is 333 Bay Street, Suite 1240, Toronto, Ontario, Canada M5H 2R2. |
(4) | Based on the Form 13G filed by Kepos Capital LP, as filed with the SEC on February 4, 2022. Mr. Mark Carhart is reported as the managing partner of Kepos Capital GP LLC, the general partner of Kepos Capital LP. The business address reported is 11 Time Square, 35th Floor, New York, NY 10036. |
(5) | Consists of shares held of record by Decheng Capital China Life Sciences USD Fund II, L.P. (Decheng Capital). Decheng Capital Management II (Cayman), LLC (Decheng Management) serves as the general partner of Decheng Capital and possesses the power to direct the voting and disposition of the shares owned by Decheng Capital. The address for Decheng Capital is 35 Si Nan Road, 3rd Floor South, Shanghai 200020, China. |
(6) | Consists of shares held of record by BC Rabbit Limited and BC Bunny Limited. 3E Bioventures Capital, L.P. (3E Bioventures) controls BC Rabbit Limited and BC Bunny Limited. The address for 3E Bioventures is Suite 701, Tower C, Tsinghua Science Park, Haidian District, Beijing, 100084 P.R. China. |
(7) | The address for Oceanpine Capital Limited is 21F, China Century Tower, No.9 Xiaoyunli South St., Beijing, 100026, China. |
(8) | The business address of each of these individuals is at c/o Apexigen, Inc., 75 Shoreway Road, Suite C, San Carlos, CA 94070. |
• | Sotigalimab co-stimulatory receptor that is essential for activating both the innate and adaptive arms of the immune system, to stimulate an anti-tumor immune response. Sotigalimab is currently in Phase 2 clinical development for the treatment of solid tumors such as melanoma, esophageal and gastroesophageal junction (“GEJ”) cancers, sarcoma, and rectal and ovarian cancers in combination with immunotherapy, chemotherapy, radiation therapy and cancer vaccines. |
• | APX601 mid-2022. |
• | Advance sotiga to registrational clinical trials |
oncology agents, chemotherapy, radiation therapy, and cancer vaccines in multiple clinical trials in patients with solid tumors, including melanoma, esophageal and gastroesophageal junction cancer, sarcoma and rectal cancer. |
• | Continue to advance and expand our pipeline. in-licensing rights to develop product candidates from biotechnology and pharmaceutical companies. |
• | Leverage our APXiMAB platform to develop additional novel product candidates |
• | Establish strategic out-licenses and collaborations to supplement our development capabilities and generate funding. |
• | Build U.S.-focused commercial capabilities. |
• | Unique epitope specificity to mimic the binding of CD40 ligand (“CD40L”) to the CD40 receptor binding site for increased potency; |
• | An engineered increase in binding to Fc gamma receptor 2B (Fc g RIIB) to increase antibody cross-linking and antitumor potency; and |
• | An engineered reduction in binding to Fc gamma receptor 3a (Fc g RIIIa) to eliminate antibody-dependent cell-mediated cytotoxicity (“ADCC”) effects on CD40-expressing APCs. |
• | Treatment of patients with anti-PD-(L)1 anti-PD-1 |
• | Administration of sotiga in combination with paclitaxel, carboplatin and radiation therapy as a neoadjuvant treatment in patients with esophageal or GEJ cancer that can be removed by surgery; and |
• | Treatment of patients with advanced sarcoma with sotiga in combination with doxorubicin. |
• | Generation of hybridomas from rabbit B cells using fusion cell lines which enable us to reproducibly generate large numbers of rabbit monoclonal antibodies; and |
• | Humanization of these antibodies using our MLG (multi lineage guided) humanization technology. |
• | diverse epitope recognition to enable fit-for-purpose |
• | the ability to recognize epitopes that are not immunogenic in other species, including small-size epitopes; and |
• | high affinity and specificity. |
• | completion of extensive preclinical studies in accordance with applicable regulations, including studies conducted in accordance with Good Laboratory Practice (“GLP”) |
• | submission to the FDA of an IND, which must become effective before human clinical trials may begin; |
• | approval by an IRB, or ethics committee at each clinical trial site before each trial may be initiated; |
• | performance of adequate and well-controlled human clinical trials in accordance with applicable IND regulations, GCP requirements and other clinical trial-related regulations to establish the safety and efficacy of the investigational product for each proposed indication; |
• | submission to the FDA of an NDA or BLA; |
• | a determination by the FDA within 60 days of its receipt of an NDA or BLA to accept the filing for review; |
• | satisfactory completion of an FDA pre-approval inspection of the manufacturing facility or facilities where the drug or biologic will be produced to assess compliance with GMP requirements to assure that the facilities, methods and controls are adequate to preserve the drug or biologic’s identity, strength, quality and purity; |
• | potential FDA audit of the preclinical study and/or clinical trial sites that generated the data in support of the NDA or BLA; |
• | FDA review and approval of the NDA or BLA, including consideration of the views of any FDA advisory committee, prior to any commercial marketing or sale of the drug or biologic in the United States; and |
• | compliance with any post-approval requirements, including the potential requirement to implement a REMS, and the potential requirement to conduct post-approval studies. |
• | Phase 1 clinical trials generally involve a small number of healthy volunteers or disease-affected patients who are initially exposed to a single dose and then multiple doses of the product candidate. The primary purpose of these clinical trials is to assess the metabolism, pharmacologic action, pharmacokinetics, toxicity, tolerability, and safety of the drug in humans, and side effects associated with increasing doses for determining a safe clinical dosage range in humans. |
• | Phase 2 clinical trials involve studies in disease-affected patients to determine the dose required to produce the desired benefits. At the same time, safety and further pharmacokinetic and pharmacodynamic information is collected, possible adverse effects and safety risks are identified, and a preliminary evaluation of efficacy is conducted. Multiple Phase 2 clinical trials may be conducted to obtain information prior to beginning larger and more expensive Phase 3 clinical trials. |
• | Phase 3 clinical trials generally involve a large number of patients at multiple sites and are designed to provide the data necessary to demonstrate the effectiveness of the product for its intended use and its safety in use and to establish the overall benefit/risk relationship of the product and provide an adequate basis for product approval. These trials may include comparisons with placebo and/or other comparator treatments. The duration of treatment is often extended to mimic the actual use of a product during marketing. |
• | analytical studies demonstrating that the proposed biosimilar product is highly similar to the approved product notwithstanding minor differences in clinically inactive components; |
• | animal studies (including the assessment of toxicity); and |
• | a clinical trial or trials (including the assessment of immunogenicity and pharmacokinetic or pharmacodynamic) sufficient to demonstrate safety, purity and potency in one or more conditions for which the reference product is licensed and intended to be used. |
• | the proposed biosimilar product and reference product utilize the same mechanism of action for the condition(s) of use prescribed, recommended, or suggested in the proposed labeling, but only to the extent the mechanism(s) of action are known for the reference product; |
• | the condition or conditions of use prescribed, recommended, or suggested in the labeling for the proposed biosimilar product have been previously approved for the reference product; |
• | the route of administration, the dosage form and the strength of the proposed biosimilar product are the same as those for the reference product; and |
• | the facility in which the biological product is manufactured, processed, packed, or held meets standards designed to assure that the biological product continues to be safe, pure, and potent. |
• | the proposed product is biosimilar to the reference product; |
• | the proposed product is expected to produce the same clinical result as the reference product in any given patient; and |
• | for a product that is administered more than once to an individual, the risk to the patient in terms of safety or diminished efficacy of alternating or switching between the biosimilar and the reference product is no greater than the risk of using the reference product without such alternation or switch. |
• | restrictions on the marketing or manufacturing of the product, complete withdrawal of the product from the market, or product recalls; |
• | fines, warning letters, or holds on post-approval clinical studies; |
• | refusal of the FDA to approve pending applications or supplements to approved applications; |
• | applications, or suspension or revocation of product license approvals; |
• | consent decrees, corporate integrity agreements, debarment or exclusion from federal healthcare programs; |
• | mandated modification of promotional materials and labeling and the issuance of corrective information; |
• | the issuance of safety alerts, Dear Healthcare Provider letters, press releases and other communications containing warnings or other safety information about the product; |
• | product seizure or detention, or refusal to permit the import or export of products; or |
• | injunctions or the imposition of civil or criminal penalties. |
• | The Community MA is issued by the European Commission through the Centralized Procedure, based on the opinion of the Committee for Medicinal Products for Human Use (CHMP), of the EMA, and is valid throughout the entire territory of the EEA. The Centralized Procedure is mandatory for certain types of products, such as biotechnology medicinal products, orphan medicinal products, advanced-therapy medicines such as gene-therapy, somatic cell-therapy or tissue-engineered medicines and medicinal products containing a new active substance indicated for the treatment of HIV, AIDS, cancer, neurodegenerative disorders, diabetes, auto-immune and other immune dysfunctions and viral diseases. The Centralized Procedure is optional for products containing a new active substance not yet authorized in the EEA, or for products that constitute a significant therapeutic, scientific or technical innovation or which are in the interest of public health in the EU. |
• | National MAs, which are issued by the competent authorities of the Member States of the EEA and only cover their respective territory, are available for products not falling within the mandatory scope of the Centralized Procedure. Where a product has already been authorized for marketing in a Member State of the EEA, this National MA can be recognized in another Member States through the Mutual Recognition Procedure. If the product has not received a National MA in any Member State at the time of application, it can be approved simultaneously in various Member States through the Decentralized Procedure. Under the Decentralized Procedure an identical dossier is submitted to the competent authorities of each of the Member States in which the MA is sought, one of which is selected by the applicant as the Reference Member State (RMS). The competent authority of the RMS prepares a draft assessment report, a draft summary of the product characteristics (SPC), and a draft of the labeling and package leaflet, which are sent to the other Member States (referred to as the Member States Concerned) for their approval. If the Member States Concerned raise no objections, based on a potential serious risk to public health, to the assessment, SPC, labeling or packaging proposed by the RMS, the product is subsequently granted a national MA in all the Member States (i.e., in the RMS and the Member States Concerned). |
• | Expenses incurred under agreements with third-party contract research organizations for clinical development; |
• | Costs related to production of drug substance, drug product and clinical supply, including fees paid to third-party contract manufacturers; |
• | Laboratory and vendor expenses related to the execution of preclinical activities; |
• | Employee-related expenses, which include salaries, benefits and stock-based compensation; and |
• | Facilities, depreciation and amortization, insurance and other direct and allocated expenses incurred in Apexigen’s research and development activities |
Year Ended December 31, |
Three Months Ended March 31, |
|||||||||||||||
2020 |
2021 |
2021 |
2022 |
|||||||||||||
(Unaudited) |
||||||||||||||||
Clinical development |
$ | 8,687 | $ | 7,745 | $ | 2,066 | $ | 1,829 | ||||||||
Contract manufacturing |
2,274 | 5,344 | 768 | 3,128 | ||||||||||||
Discovery and non-clinical expenses |
2,250 | 2,907 | 518 | 425 | ||||||||||||
Personnel costs |
4,204 | 4,444 | 1,258 | 1,478 | ||||||||||||
Other costs |
1,355 | 1,224 | 353 | 248 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total research and development expenses |
$ | 18,770 | $ | 21,664 | $ | 4,963 | $ | 7,108 | ||||||||
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
||||||||||||||||
2021 |
2022 |
$ Change |
% Change |
|||||||||||||
(Unaudited) |
||||||||||||||||
Operating expenses |
||||||||||||||||
Research and development |
$ | 4,963 | $ | 7,108 | $ | 2,145 | 43.2 | % | ||||||||
General and administrative |
1,539 | 1,986 | 447 | 29.0 | % | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total operating expenses |
6,502 | 9,094 | 2,592 | 39.9 | % | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Loss from operations |
(6,502 | ) | (9,094 | ) | (2,592 | ) | 39.9 | % | ||||||||
Interest income, net |
15 | 52 | 37 | 246.7 | % | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Net loss |
$ | (6,487 | ) | $ | (9,042 | ) | $ | (2,555 | ) | 39.4 | % | |||||
|
|
|
|
|
|
|
|
Year Ended December 31, |
||||||||||||||||
2020 |
2021 |
$ Change |
% Change |
|||||||||||||
Operating expenses |
||||||||||||||||
Research and development |
$ | 18,770 | $ | 21,664 | $ | 2,894 | 15.4 | % | ||||||||
General and administrative |
5,774 | 7,293 | 1,519 | 26.3 | % | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total operating expenses |
24,544 | 28,957 | 4,413 | 18.0 | % | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Loss from operations |
(24,544 | ) | (28,957 | ) | (4,413 | ) | 18.0 | % | ||||||||
Interest income, net |
421 | 41 | (380 | ) | (90.3 | %) | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Net loss |
$ | (24,123 | ) | $ | (28,916 | ) | $ | (4,793 | ) | 19.9 | % | |||||
|
|
|
|
|
|
|
|
• | the progress, timing, scope, results and costs of Apexigen’s clinical trials and preclinical studies for Apexigen’s product candidates, including the ability to enroll patients in a timely manner for Apexigen’s clinical trials; |
• | the costs of obtaining clinical and commercial supplies and validating the commercial manufacturing process for sotigalimab and any other product candidates; |
• | Apexigen’s ability to successfully commercialize sotigalimab and any other product candidates; |
• | the cost, timing and outcomes of regulatory approvals; |
• | the extent to which Apexigen may acquire or in-license other product candidates and technologies; |
• | the timing and amount of any milestone, royalty or other payments Apexigen is required to make pursuant to any current or future collaboration or license agreement; |
• | the extent to which Apexigen receives royalty payments though Apexigen’s current or any future partnership arrangements; |
• | Apexigen’s ability to attract, hire and retain qualified personnel; |
• | the cost of preparing, filing, prosecuting, defending and enforcing any patent claims and other intellectual property rights; and |
• | the impact of the ongoing COVID-19 pandemic, which may exacerbate the magnitude of the factors discussed above. |
Year Ended December 31, |
Three Months Ended March 31, |
|||||||||||||||
2020 |
2021 |
2021 |
2022 |
|||||||||||||
(Unaudited) |
||||||||||||||||
Net cash used in operating activities |
$ | (19,957 | ) | $ | (23,902 | ) | $ | (6,854 | ) | $ | (8,340 | ) | ||||
Net cash (used in) provided by investing activities |
(24,161 | ) | (22,024 | ) | 8,514 | 2,520 | ||||||||||
Net cash provided by (used in) financing activities |
12,897 | 37 | 24 | (72 | ) |
Name |
Age |
Title | ||
Xiaodong Yang, M.D., Ph.D. | 62 | Chief Executive Officer and Director Nominee | ||
Frank Hsu, M.D. | 61 | Chief Medical Officer | ||
Francis Sarena | 51 | Chief Operating Officer | ||
Amy Wong | 56 | Senior Vice President, Finance and Operations | ||
Herb Cross (1)(3) |
50 | Director Nominee | ||
Jakob Dupont, M.D. (2) |
57 | Director Nominee | ||
Gordon Ringold, Ph.D. (1)(3) |
71 | Director Nominee | ||
Scott Smith (2)(3) |
60 | Director Nominee | ||
Samuel Wertheimer, Ph.D. | 62 | Director Nominee | ||
Dan Zabrowski, Ph.D. (1)(2) |
62 | Director Nominee |
(1) | Member of the audit committee, effective upon consummation of the Business Combination. |
(2) | Member of the compensation committee, effective upon consummation of the Business Combination. |
(3) | Member of the corporate governance and nominating committee, effective upon consummation of the Business Combination. |
• | the Class I directors will be Samuel Wertheimer, Xiaodong Yang and Dan Zabrowski and their terms will expire at the annual meeting of stockholders to be held in 2023; |
• | the Class II directors will be Gordon Ringold and Scott Smith and their terms will expire at the annual meeting of stockholders to be held in 2024; and |
• | the Class III directors will be Herb Cross and Jakob Dupont and their terms will expire at the annual meeting of stockholders to be held in 2025. |
• | select and hire the independent registered public accounting firm to audit the Combined Company’s financial statements; |
• | help to ensure the independence and performance of the independent registered public accounting firm; |
• | approve audit and non-audit services and fees; |
• | review and discuss the Combined Company’s annual audited and quarterly financial statements, the results of the independent audit and the quarterly reviews and the reports and certifications regarding internal controls over financial reporting and disclosure controls with management and the independent registered public accounting firm; |
• | prepare the audit committee report that the SEC requires to be included in the Combined Company’s annual proxy statement; |
• | review reports and communications from the independent registered public accounting firm; |
• | review the adequacy and effectiveness of the Combined Company’s internal controls and disclosure controls and procedure; |
• | review the Combined Company’s policies on risk assessment and risk management; |
• | review and monitor conflicts of interest situations, and approve or prohibit any involvement in matters that may involve a conflict of interest or taking of a corporate opportunity; |
• | review related party transactions; and |
• | establish and oversee procedures for the receipt, retention, and treatment of accounting related complaints and the confidential submission by the Combined Company’s employees of concerns regarding questionable accounting or auditing matters. |
• | oversee the Combined Company’s overall compensation philosophy and compensation policies, plans, and benefit programs; |
• | review and approve or recommend to the board of directors for approval compensation for the Combined Company’s executive officers and directors; |
• | prepare the compensation committee report that the SEC will require to be included in the Combined Company’s annual proxy statement; and |
• | administer Combined Company’s equity compensation plans. |
• | identify, evaluate, and make recommendations to the Combined Company’s board of directors regarding nominees for election to the Combined Company’s board of directors and its committees; |
• | consider and make recommendations to the Combined Company’s board of directors regarding the composition of Combined Company’s board of directors and its committees; |
• | review developments in corporate governance practices; |
• | evaluate the adequacy of the Combined Company’s corporate governance practices and reporting; and |
• | evaluate the performance of the Combined Company’s board of directors and of individual directors. |
Directors |
Fees earned or paid in cash ($) |
Stock options ($) (1) |
Total ($) |
|||||||||
Herb Cross |
50,000 | — | 50,000 | |||||||||
Jakob Dupont, M.D. |
50,000 | 79,478 | (2) |
129,478 | ||||||||
Kenneth Fong, Ph.D. |
— | — | — | |||||||||
Gordon Ringold, Ph.D. |
50,000 | — | 50,000 | |||||||||
William J. Rutter, Ph.D. |
— | — | — | |||||||||
Scott Smith |
50,000 | — | 50,000 | |||||||||
Dan Zabrowski, Ph.D. |
— | — | — |
(1) | The amounts reported represent the aggregate grant-date fair value of the stock options awarded to the directors in fiscal 2021, calculated in accordance with Financial Accounting Standards Board, or FASB, Accounting Standards Codification, or ASC Topic 718, Compensation—Stock Compensation |
(2) | In 2021, pursuant to the terms of a consulting agreement with Apexigen, Dr. Dupont was granted a stock option under our 2020 Plan that is exercisable for 200,000 shares of common stock, which vest upon Apexigen’s achievement of certain performance-based milestones. |
☐ | $40,000 per year for service as a non-employee director; |
☐ | $30,000 per year for service as non-employee chair of the Combined Company Board; |
☐ | $15,000 per year for service as chair of the Combined Company’s audit committee; |
☐ | $7,500 per year for service as a member of the Combined Company’s audit committee; |
☐ | $10,000 per year for service as chair of the Combined Company’s compensation committee; |
☐ | $5,000 per year for service as a member of the Combined Company’s compensation committee; |
☐ | $8,000 per year for service as chair of the Combined Company’s nominating and corporate governance committee; and |
☐ | $4,000 per year for service as a member of the Combined Company’s nominating and corporate governance committee. |
• | Xiaodong Yang, M.D., Ph.D., Apexigen’s President and Chief Executive Officer; |
• | Frank Hsu, M.D., Apexigen’s Chief Medical Officer; and |
• | Amy Wong, Apexigen’s Senior Vice President, Finance and Operations. |
Name and Principal Position |
Year |
Salary ($) |
Option Awards ($) (1) |
Bonus ($) (2) |
All Other Compensation ($) (3) |
Total ($) |
||||||||||||||||||
Xiaodong Yang, M.D., Ph.D. President and Chief Executive Officer |
2021 | 419,168 | 125,777 | 108,984 | 13,177 | 667,106 | ||||||||||||||||||
Frank Hsu, M.D. (4) Chief Medical Officer |
2021 | 170,513 | — | 37,917 | 3,763 | 212,193 | ||||||||||||||||||
Amy Wong Senior Vice President, Finance and Operations |
2021 | 293,306 | 50,891 | 60,450 | 15,165 | 419,812 |
(1) | The amounts reported represent the aggregate grant-date fair value of the stock options awarded to the named executive officer in fiscal 2021, calculated in accordance with ASC 718. Such grant-date fair value does not take into account any estimated forfeitures related to service-vesting conditions. The assumptions used in determining the grant date fair value of the stock options reported are set forth in Note 2 to Apexigen’s audited financial statements included elsewhere in this proxy statement/prospectus. |
(2) | The amounts reported represent a bonus paid for the achievement of Apexigen and/or individual objectives for 2021. |
(3) | The amounts include matching contributions under Apexigen’s 401(k) plan ($8,859 for Dr. Yang, $3,333 for Dr. Hsu and $11,600 for Ms. Wong), life insurance premiums ($1,718 for Dr. Yang, $430 for Dr. Hsu and $3,565 for Ms. Wong), and medical insurance opt-out and gym reimbursements for Dr. Yang in the amounts of $2,400 and $200, respectively. |
(4) | Dr. Hsu joined Apexigen as its Chief Medical Officer in August 2021. |
Option Awards |
||||||||||||||||||||
Name |
Grant Date (1) |
Number of Securities Underlying Unexercised Options (#) Exercisable |
Number of Securities Underlying Unexercised Options (#) Unexercisable |
Option Exercise Price ($) |
Option Expiration Date |
|||||||||||||||
Xiaodong Yang, M.D., Ph.D. |
10/29/13 | 2,146,956 | (2) |
— | 0.13 | 10/29/23 | ||||||||||||||
06/25/15 | 200,000 | (2) |
— | 0.15 | 06/25/25 | |||||||||||||||
10/30/15 | 4,500,000 | (2) |
— | 0.17 | 10/30/25 | |||||||||||||||
12/16/16 | 350,000 | (2) |
— | 0.23 | 12/16/26 | |||||||||||||||
02/17/17 | 300,000 | (2) |
— | 0.23 | 02/17/27 | |||||||||||||||
05/22/18 | 2,588,121 | 300,944 | (3) |
0.37 | 05/22/28 | |||||||||||||||
02/14/19 | 687,083 | 282,917 | (4) |
0.67 | 02/14/29 | |||||||||||||||
02/20/20 | — | 120,028 | (5) |
0.72 | 02/20/30 | |||||||||||||||
02/20/20 | 431,250 | 348,722 | (6) |
0.47 | 02/20/30 | |||||||||||||||
02/12/21 | 85,938 | 289,062 | (7) |
0.47 | 02/12/31 | |||||||||||||||
Amy Wong |
05/09/14 | 218,000 | (2) |
— | 0.13 | 05/09/24 | ||||||||||||||
06/25/15 | 85,000 | (2) |
— | 0.15 | 06/25/25 | |||||||||||||||
10/30/15 | 2,250,000 | (2) |
— | 0.17 | 10/30/25 | |||||||||||||||
12/16/16 | 150,000 | (2) |
— | 0.23 | 12/16/26 | |||||||||||||||
02/17/17 | 135,000 | (2) |
— | 0.23 | 02/17/27 | |||||||||||||||
05/22/18 | 651,182 | 43,412 | (8) |
0.37 | 05/22/28 | |||||||||||||||
02/14/19 | 420,000 | 140,000 | (9) |
0.47 | 02/14/29 | |||||||||||||||
02/20/20 | 270,834 | 229,166 | (10) |
0.47 | 02/20/30 | |||||||||||||||
02/12/21 | 43,750 | 106,250 | (11) |
0.47 | 02/12/31 |
(1) | Each of the outstanding equity awards with a grant date before August 1, 2020 was granted pursuant to our 2010 Equity Plan; subsequent equity awards were granted pursuant to our 2020 Equity Plan. |
(2) | The shares underlying this option are fully vested and immediately exercisable. |
(3) | The shares underlying this option vest, subject to certain performance-based milestones, and to Dr. Yang’s continued role as a service provider to Apexigen, beginning on May 22, 2018. |
(4) | The shares underlying this option vest, subject to certain performance-based milestones, and to Dr. Yang’s continued role as a service provider to Apexigen, beginning on February 14, 2019. |
(5) | The shares underlying this option vest, subject to certain performance-based milestones, and to Dr. Yang’s continued role as a service provider to Apexigen, beginning on January 1, 2020. |
(6) | The shares underlying this option vest, subject to Dr. Yang’s continued role as a service provider to Apexigen, in 48 equal monthly installments beginning on January 1, 2020. |
(7) | The shares underlying this option vest, subject to certain performance-based milestones, and to Dr. Yang’s continued role as a service provider to Apexigen, beginning on January 1, 2021. |
(8) | The shares underlying this option vest, subject to Ms. Wong’s continued role as a service provider to Apexigen, in 48 equal monthly installments beginning on May 22, 2018. |
(9) | The shares underlying this option vest, subject to Ms. Wong’s continued role as a service provider to Apexigen, in 48 equal monthly installments beginning on February 14, 2019. |
(10) | The shares underlying this option vest, subject to Ms. Wong’s continued role as a service provider to Apexigen, in 48 equal monthly installments beginning on January 1, 2020. |
(11) | The shares underlying this option vest, subject to Ms. Wong’s continued role as a service provider to Apexigen, in 48 equal monthly installments beginning on January 1, 2021. |
• | continuing payments of severance of the executive officer’s base salary as in effect immediately prior to such termination for a specified period (12 months in the case of Dr. Yang, six months in the case of Dr. Hsu and four months in the case of Ms. Wong); |
• | reimbursement of premiums for coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), for the applicable executive officer and their eligible dependents, if any, for up to 12 months (in the case of Dr. Yang), six months (in the case of Dr. Hsu) and four months (in the case of Ms. Wong), or taxable monthly payments for the equivalent period in the event payment of the COBRA premiums would violate or be subject to an excise tax under applicable law; and |
• | vesting acceleration as to any equity awards that are outstanding and unvested as of the date of such termination that were scheduled to vest during the 12-month period (in the case of Dr. Yang), |
six-month period (in the case of Dr. Hsu) and four-month period (in the case of Ms. Wong) following the date of such termination. |
• | a lump-sum payment equal to 18 months (in the case of Dr. Yang), nine months (in the case of Dr. Hsu) and six months (in the case of Ms. Wong) of the applicable executive officer’s annual base salary as in effect immediately prior to such termination; |
• | in the case of Dr. Yang and Ms. Wong, a lump-sum payment equal to their target bonus for the calendar year in which their termination occurs multiplied by a fraction, the numerator of which is the number of days Dr. Yang or Ms. Wong, as applicable, was employed during the calendar year in which the termination occurs and the denominator is the number of days in such calendar year; |
• | reimbursement of premiums for coverage under COBRA, for the applicable executive officer and their eligible dependents, if any, for up to 18 months (in the case of Dr. Yang), nine months (in the case of Dr. Hsu) and six months (in the case of Ms. Wong), or taxable monthly payments for the equivalent period in the event payment of the COBRA premiums would violate or be subject to an excise tax under applicable law; and |
• | vesting acceleration as to 100% of the then-unvested shares subject to all outstanding company equity awards held by such executive officer. In the case of an equity award with performance-based vesting, unless otherwise specified in the applicable equity award agreement governing such award, all performance goals and other vesting criteria will be deemed achieved at the greater of actual achievement (if determinable) or 100% of target levels. |
• | any breach of the director’s duty of loyalty to us or to our stockholders; |
• | acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
• | unlawful payment of dividends or unlawful stock repurchases or redemptions; and |
• | any transaction from which the director derived an improper personal benefit. |
• | each issued and outstanding share of capital stock of Apexigen (including shares of capital stock that are issued and outstanding immediately prior to the Effective Time resulting from the conversion or exercise of Apexigen Preferred Stock”, Apexigen Warrants and Apexigen Options, but excluding any dissenting shares) will be canceled and converted into the right to receive a number of shares of BCAC Common Stock equal to the Exchange Ratio; |
• | each share of capital stock of Apexigen held in the treasury of Apexigen shall be canceled without any conversion thereof and no payment or distribution shall be made with respect thereto; |
• | each Apexigen Option that is then outstanding will be converted into a BCAC Option on substantially the same vesting and exercisability terms and conditions as such Apexigen Options, except that (i) such BCAC Option will represent the right to purchase a number of shares of BCAC Common Stock equal to the product (rounded down to the nearest whole share) of the number of shares of Apexigen Common Stock subject to such Apexigen Option multiplied by the Exchange Ratio, and (ii) the exercise price per share for each such BCAC Option will be equal to the quotient of (A) the exercise price per share of such Apexigen Option in effect immediately prior to the Effective Time, divided by (B) the Exchange Ratio (the exercise price per share, as so determined, being rounded up to the nearest full cent); and |
• | each issued and outstanding warrant to purchase shares of Apexigen capital stock will be treated in accordance with the terms thereof, as may be amended prior to the Effective Time by Apexigen and the holder thereof with the consent of BCAC. |
• | each issued and outstanding warrant to purchase shares of Apexigen capital stock will be treated in accordance with the terms thereof, as may be amended prior to the Effective Time by Apexigen and the holder thereof with the consent of BCAC; |
• | each issued and outstanding share of capital stock of Apexigen (including shares of capital stock that are issued and outstanding immediately prior to the Effective Time resulting from the conversion or exercise of Apexigen Preferred Stock, Apexigen Warrants, and Apexigen Options, but excluding any dissenting shares) will be converted into the right to receive a number of shares of BCAC Common Stock equal to the Exchange Ratio; |
• | each share of capital stock of Apexigen held in the treasury of Apexigen shall be canceled without any conversion thereof and no payment or distribution shall be made with respect thereto; |
• | each Apexigen Option that is outstanding immediately prior to the Effective Time, whether vested or unvested, will be converted into a BCAC Option on substantially the same vesting and exercisability terms and conditions as such Apexigen Options, except that (i) such BCAC Option will represent the |
right to purchase a number of shares of BCAC Common Stock equal to the product (rounded down to the nearest whole share) of the number of shares of Apexigen Common Stock subject to such Apexigen Option multiplied by the Exchange Ratio, and (ii) the exercise price per share for each such BCAC Option will be equal to the quotient of (A) the exercise price per share of such Apexigen Option in effect immediately prior to the Effective Time, divided by (B) the Exchange Ratio (the exercise price per share, as so determined, being rounded up to the nearest full cent); |
• | At any time prior to the Effective Time, Apexigen shall not have any claim to, or make any claim against, the Trust Account, regardless of whether such claim relates to the business relationship between Apexigen and BCAC, the Business Combination Agreement, or any other agreement or matter, and regardless of whether such claim is based on contract, tort, equity or any other theory of legal liability. |
• | At any time prior to the Effective Time, Apexigen shall promptly inform BCAC of any event or circumstance relating to Apexigen or its officers or directors which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement. |
• | As soon as reasonably practicable after the Registration Statement (as defined below) becomes effective, but no later than 10 business days prior to the Stockholders’ Meeting, Apexigen shall seek the irrevocable written consent of the requisite stockholders to approve and adopt the Business Combination Agreement and the Business Combination. |
• | During the Interim Period, Apexigen shall not, and shall direct its representatives not to, directly or indirectly, (A) solicit, negotiate with, provide any nonpublic information regarding Apexigen’s business, or enter into any contract with, or knowingly encourage, any person (other than BCAC and its affiliates) relating to a potential acquisition of all or substantially all of the equity interests or assets of Apexigen (an “Alternative Transaction”), (B) enter into any agreement regarding, continue or otherwise participate in any discussions regarding, or furnish to any person any information with respect to, or cooperate in any way that would otherwise reasonably be expected to lead to, any Alternative Transaction or (C) commence, continue or renew any due diligence investigation regarding any Alternative Transaction. Apexigen shall promptly notify such person in writing that Apexigen is subject to an exclusivity agreement with respect to the sale of Apexigen and will provide BCAC with a copy of any such written inquiry or proposal or a detailed summary of any such verbal inquiry or proposal. |
• | For a period of six years from the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement or expense reimbursement than are set forth in the bylaws of Apexigen, which provisions shall not be amended, repealed or otherwise modified in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of Apexigen, unless such modification shall be required by applicable law. |
• | Apexigen shall use reasonable best efforts to deliver: (a) not later than 30 days from the date of the Business Combination, true and complete copies of (i) the consolidated financial statements of Apexigen for the twelve-month period ended December 31, 2020, and (ii) the financial statements of Apexigen for the nine-month period ended September 30, 2021, and (b) as soon as possible but in any event not later than March 15, 2022, true and complete copies of the consolidated financial statements of Apexigen for the twelve-month period ended December 31, 2021, in each case, that are required to be included in the registration statement in connection with the Business Combination. |
• | As promptly as practicable after the execution of the Business Combination Agreement, BCAC shall prepare and file with the SEC a joint information statement/proxy statement (the “Proxy Statement”) to be sent to the stockholders of BCAC. |
• | As promptly as practicable after the execution of the Business Combination Agreement, BCAC shall prepare and file with the SEC this registration statement on Form S-4 (the “Registration Statement”) in which the Proxy Statement shall be included as a prospectus in connection with the registration of the shares of BCAC Common Stock (A) to be issued to the stockholders of Apexigen pursuant to the Business Combination Agreement, subject to certain exceptions, and (B) held by the stockholders of BCAC immediately prior to the Effective Time. |
• | At any time prior to the Effective Time, BCAC shall promptly inform Apexigen of any event or circumstance relating to BCAC or Merger Sub, or their respective officers or directors, which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy Statement. |
• | Within 45 days after the Effective Time, BCAC shall file a registration statement on Form S-3 (or Form S-1 or another appropriate form) with the SEC with respect to the shares of BCAC Common Stock to be issued to the resale stockholders, and BCAC shall use commercially reasonable efforts to cause such registration statement to be declared effective, in each case subject to the rights and restrictions set forth in the Registration Rights and Lock-Up |
• | BCAC shall use its reasonable best efforts to hold the Stockholders’ Meeting after the date on which the Registration Statement becomes effective (but in any event no later than 30 days after the date on which the Proxy Statement is mailed to stockholders of BCAC), to obtain the approval of the Proposals at the Stockholders’ Meeting, and shall take all other action necessary or advisable to secure the required vote or consent of its stockholders. |
• | BCAC shall approve and adopt the Business Combination Agreement and approve the Business Combination as the sole stockholder of Merger Sub. |
• | During the Interim Period, BCAC shall not take, nor permit any of its affiliates or representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any person (other than Apexigen, its stockholders and/or any of their affiliates or representatives) concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction other than with Apexigen, its stockholders and their respective affiliates and representatives. |
• | Prior to the Closing, the BCAC Board shall approve and adopt an equity incentive award plan for the Surviving Corporation, with any changes or modifications as Apexigen and BCAC may mutually agree (such agreement not to be unreasonably withheld, conditioned or delayed by either Apexigen or BCAC, as applicable), which will permit the issuance of shares of BCAC Common Stock after, and conditioned upon, the Closing. |
• | Following the Effective Time and upon approval of the Equity Plan by BCAC’s stockholders, BCAC shall file an effective Form S-8 Registration Statement with the SEC with respect to the shares of BCAC Common Stock issuable under the Equity Plan and shall use commercially reasonable efforts to maintain the effectiveness of such Form S-8 Registration Statement for so long as awards granted pursuant to the Equity Plan remain outstanding. |
• | Prior to the Closing, the BCAC Board shall approve and adopt an employee stock purchase plan for the Surviving Corporation, with any changes or modifications thereto as Apexigen and BCAC may mutually agree (such agreement not to be unreasonably withheld, conditioned or delayed by either Apexigen or BCAC, as applicable) (the “ESPP”), which will permit the issuance of shares of BCAC Common Stock to employees at BCAC or its subsidiaries (including the Surviving Corporation ) after, and conditioned upon, the Closing. |
• | Following the Effective Time and upon approval of the ESPP by BCAC’s stockholders, BCAC shall file an effective Form S-8 Registration Statement with the SEC with respect to the shares of BCAC Common Stock issuable under the ESPP and shall use commercially reasonable efforts to maintain the effectiveness of such Form S-8 Registration Statement for so long as awards granted pursuant to the ESPP remain outstanding. |
• | On the Closing Date, BCAC shall enter into customary indemnification agreements reasonably satisfactory to Apexigen with the post-Closing directors and officers of BCAC and the Surviving Corporation. |
• | For a period of no less than six years after the Closing Date, BCAC shall, with regard to pre-Closing acts, errors, omissions of BCAC directors and officers, maintain a certificate of incorporation and bylaws with provisions no less favorable with respect to indemnification, advancement, expense reimbursement, and exculpation, than are set forth in the certificate of incorporation or bylaws of BCAC just prior to Closing. |
• | For a period of six years after the Closing Date, BCAC shall cause the Surviving Corporation to indemnify and hold harmless each present and former director, officer, employee, fiduciaries or agents of Apexigen against any costs or expenses, judgments, fines, losses, claims, damages or liabilities incurred in connection with any action arising out of or pertaining to matters existing or occurring at or prior to the Effective Time. |
• | For a period of six years after the Closing Date, BCAC shall defend, indemnify and hold harmless the Sponsor, its affiliates, and their respective present and former directors and officers against any costs or expenses, judgments, fines, losses, claims, damages or liabilities incurred in connection with any action by any stockholder of BCAC who has not exercised Redemption Rights arising from Sponsor’s ownership of equity securities of BCAC, or its control or ability to influence BCAC, and further arising out of or pertaining to the transactions, actions, and investments contemplated by the Business Combination Agreement or any Ancillary Agreements. |
• | BCAC shall not, without the prior written consent of Apexigen (such consent not to be unreasonably withheld, conditioned or delayed), permit or consent to any amendment, supplement or modification to any Subscription Agreement that would reasonably be expected to delay or prevent the consummation of the PIPE Investment, or any amendment, supplement or modification to the Lincoln Park Purchase Agreement that would reasonably be expected to impair the ability of BCAC to fully avail itself to the benefits of the Lincoln Park Purchase Agreement following the Closing. |
• | Upon the Effective Time, the BCAC Board shall consist of seven members, as determined by BCAC and Apexigen pursuant to the terms of the Business Combination Agreement. |
• | If Apexigen determines that the Closing is unlikely to be consummated on or before May 2, 2022, then BCAC shall take all actions commercially reasonable to obtain the approval of the stockholders of BCAC to extend the deadline for BCAC to consummate its initial business combination to a date no later than October 31, 2022. |
• | BCAC and Apexigen each shall use its reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to comply in all material respects with all laws applicable thereto, (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Registration Statement, (iii) cause the Registration Statement to be declared effective under the Securities Act as promptly as practicable, and (iv) to keep the Registration Statement effective as long as is necessary to consummate the Business Combination. |
• | Each of Apexigen and BCAC shall mail the Proxy Statement to their respective stockholders as promptly as practicable after finalization of the Proxy Statement. |
• | No filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by BCAC or Apexigen without the approval of the other party (such approval not to be unreasonably withheld, conditioned or delayed). BCAC and Apexigen each will advise the other of the filing of any supplement or amendment, the issuance of any stop order, the suspension of the qualification of BCAC Common Stock, any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto or requests by the SEC for additional information. |
• | During the Interim Period and subject to confidentiality obligations, Apexigen and BCAC shall (and shall cause their respective subsidiaries and representatives to) (i) provide to the other party reasonable access at reasonable times upon reasonable prior notice, properties, offices and other facilities of such party and its subsidiaries and to the books and records thereof, and (ii) furnish promptly to the other party such information concerning the business, properties, contracts, assets, liabilities, personnel and other aspects of such party and its subsidiaries as the other party or its representatives may reasonably request to consummate the Business Combination, in each case subject to customary exceptions. |
• | For a period of six years after the Closing Date, each of Apexigen and BCAC shall provide insurance coverage to persons who were directors or officers of Apexigen or BCAC, as applicable, on or prior to the Closing Date, that is at least as favorable than such person’s policy as in effect on the date of the Business Combination Agreement, covering events, acts or omissions occurring on or prior to the Closing Date. |
• | During the Interim Period, neither BCAC nor Apexigen shall issue any press release or make any public statement with respect to the Business Combination Agreement, the Merger or the Business Combination without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed), except as otherwise prohibited by applicable law or the Stock Exchange. |
• | Each of BCAC, Merger Sub and Apexigen shall use their respective commercially reasonable efforts to cause the Merger to qualify and agree not to take any action which could reasonably be expected to prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code. |
• | Each of BCAC, Merger Sub and Apexigen agrees to promptly make required filing or application under antitrust laws, to respond promptly to request for additional information as may be required by antitrust laws, and to use commercially reasonable efforts to take all other actions necessary, proper or advisable to eliminate impediments under any antitrust law so as to enable the parties to consummate the Business Combination, including to cause the expiration or termination of the applicable waiting periods or obtain required approvals, as applicable. |
• | financial condition and results of operation; |
• | growth potential; |
• | brand recognition and potential; |
• | experience and skill of management and availability of additional personnel; |
• | capital requirements; |
• | competitive position; |
• | barriers to entry; |
• | stage of development of the products, processes or services; |
• | existing distribution and potential for expansion; |
• | degree of current or potential market acceptance of the products, processes or services; |
• | proprietary aspects of products and the extent of intellectual property or other protection for products or methods; |
• | impact of regulation on the business; |
• | regulatory environment of the industry; |
• | costs associated with effecting the business combination; |
• | industry leadership, sustainability of market share and attractiveness of market industries in which a target business participates; |
• | macro competitive dynamics in the industry within which the company competes; and |
• | fit, cooperation and coachability of management team. |
• | meetings and calls with the management team, advisors and Apexigen regarding operations and clinical studies; |
• | calls with clinical investigators involved with Apexigen clinical studies; |
• | research on 63 oncology companies that had gone public between 2018 and 2021; |
• | review of intellectual property matters; |
• | review of financial, tax, legal, insurance and accounting due diligence; |
• | consultation with legal and financial advisors and industry experts; and |
• | the financial statements of Apexigen. |
• | that Apexigen is an early-stage, clinical stage, pre-revenue company and may never be successful in commercializing its product candidates; |
• | the risk of macroeconomic uncertainty; |
• | the risk of utilization of an equity line for financing; |
• | cost assumption risks; |
• | competitive risks; |
• | the risk that the potential benefits of the Business Combination may not be fully achieved or may not be achieved within the expected timeframe; |
• | the risks that are associated with being a publicly traded company that is in its early, developmental stage; |
• | the risk that a significant number of BCAC stockholders elect to redeem their shares prior to the consummation of the Business Combination and pursuant to the Existing Charter, which would potentially reduce the amount of cash available to the Combined Company to execute on its business plan following the Closing; |
• | the risk that BCAC stockholders may fail to provide the votes necessary to effect the Business Combination or approve the Extension Amendment; |
• | the risk of litigation challenging the Business Combination or that an adverse judgment granting permanent injunctive relief could indefinitely enjoin consummation of the Business Combination; |
• | the risk that completion of the Business Combination is conditioned on the satisfaction of certain closing conditions that are not within BCAC’s control; |
• | the risk that BCAC did not obtain a third-party valuation or fairness opinion in connection with the Business Combination; |
• | that BCAC stockholders will hold a minority position in the Combined Company; and |
• | various other risks about Apexigen described in the section entitled “ Risk Factors |
• | an individual who is a citizen or resident of the United States for U.S. federal income tax purposes; |
• | a corporation created or organized in or under the laws of the United States, any state thereof or the District of Columbia (or any other entity treated as a corporation for U.S. federal income tax purposes); |
• | an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or |
• | a trust that (1) is subject to the primary supervision of a U.S. court and the control of one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code), or (2) has a valid election in effect under applicable Treasury Regulations to be treated as a United States person for U.S. federal income tax purposes. |
• | banks, financial institutions or financial services entities; |
• | broker-dealers; |
• | governments or agencies or instrumentalities thereof; |
• | regulated investment companies; |
• | real estate investment trusts; |
• | expatriates or former long-term residents of the United States; |
• | individual retirement or other tax-deferred accounts; |
• | persons that actually or constructively own 5% or more of the outstanding stock of BCAC; |
• | insurance companies; |
• | dealers or traders subject to a mark-to-market |
• | persons holding Public Shares as part of a “straddle,” constructive sale, hedge, conversion or other integrated transaction or similar transaction; |
• | persons owning (actually or constructively) any shares of Apexigen Common Stock; |
• | U.S. Holders (as defined herein) whose functional currency is not the U.S. dollar; |
• | holders who acquired (or will acquire) their Public Shares through the exercise of employee stock options or otherwise as compensation or through a tax-qualified retirement plan; |
• | partnerships or other pass-through entities for U.S. federal income tax purposes and any beneficial owners of such entities; |
• | subchapter S corporations (and investors therein); |
• | controlled foreign corporations; |
• | a person required to accelerate the recognition of any item of gross income as a result of such income being recognized on an applicable financial statement; |
• | the Sponsor and persons related to the Sponsor; |
• | passive foreign investment companies; and |
• | tax-exempt entities. |
• | the gain is effectively connected with the conduct of a trade or business by the Non-U.S. Holder within the United States (and, under certain income tax treaties, is attributable to a United States permanent establishment or fixed base maintained by the Non-U.S. Holder); |
• | the Non-U.S. Holder is an individual who is present in the United States for 183 days or more in the taxable year of the redemption and certain other conditions are met; or |
• | BCAC is or has been a “U.S. real property holding corporation” for U.S. federal income tax purposes at any time during the shorter of the five-year period ending on the date of disposition or the period that the Non-U.S. Holder held Public Shares, and, in the case where BCAC’s common stock is regularly traded on an established securities market, the Non-U.S. Holder has owned, directly or constructively, more than 5% of BCAC’s common stock at any time within the shorter of the five-year period preceding the disposition or such Non-U.S. Holder’s holding period for the Public Shares. There can be no assurance that BCAC Common Stock will be treated as regularly traded on an established securities market for this purpose. |
BCAC |
Combined Company | |
Authorized Capital | ||
BCAC’s authorized capital stock consists of 25,000,000 shares of common stock, par value $0.0001 per share, and 1,000,000 shares of preferred stock, par value $0.0001 per share. | The Combined Company’s authorized capital stock will consist of 1,000,000,000 shares of common stock, par value $0.0001 per share, and 20,000,000 shares of preferred stock, par value $0.0001 per share. | |
Issuance of Preferred Stock | ||
BCAC’s Existing Charter provides that the BCAC Board may issue the preferred stock in one or more series and to fix the designations, powers, preferences and rights, and the qualifications, limitations or restrictions of the preferred stock. | The Combined Company’s Proposed Charter provides that the Combined Company Board may issue the preferred stock in one or more series and to fix the designations, powers, preferences and rights, and the qualifications, limitations or restrictions of the preferred stock. | |
Voting Rights | ||
BCAC’s Existing Charter provides that the holders of shares of BCAC’s common stock are entitled to one vote on any matter submitted to a vote at a meeting of stockholders. | The Combined Company’s Proposed Charter provides that the holders of shares of the Combined Company’s common stock will be entitled to one vote on any matter submitted to a vote at a meeting of stockholders. | |
Cumulative Voting | ||
No holder of BCAC’s capital stock is permitted to cumulate votes at any election of directors. | No holder of the Combined Company’s capital stock will be permitted to cumulate votes at any election of directors. |
BCAC |
Combined Company | |
Number of Directors | ||
The number of directors of BCAC is fixed from time to time by resolution of the BCAC Board. The directors are divided into three classes as nearly equal in size as is practicable, with each class being elected to a staggered three-year term. Directors serve until their successors are elected and qualified or until their earlier death, resignation, or removal. | The number of directors of the Combined Company will be fixed from time to time by resolution of the Combined Company’s Board. The directors will be divided into three classes as nearly equal in size as is practicable, with each class being elected to a staggered three-year term. Directors serve until their successors are elected and qualified or until their earlier death, resignation, or removal. | |
Election of Directors | ||
BCAC’s existing bylaws require that the election of directors be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon. | The Combined Company Bylaws require that the election of directors be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon. | |
Manner of Acting by Board | ||
BCAC’s existing bylaws provide that the affirmative vote of a majority of the directors present at a meeting at which a quorum is present is the act of the BCAC Board. | The Combined Company Bylaws provide that the affirmative vote of a majority of the directors present at a meeting at which a quorum is present is the act of the Combined Company Board. | |
Removal of Directors | ||
BCAC’s Existing Charter provides that any director may be removed from office by the stockholders only for cause. | The Combined Company’s Proposed Charter provides that, so long as the Combined Company Board remains as a classified board, any director may be removed from office by the stockholders only for cause. | |
Nomination of Director Candidates | ||
BCAC’s existing bylaws provides that nominations of persons for election to the BCAC Board may be made only (i) as specified in BCAC’s notice of meeting given by or at the direction of the BCAC Board, (ii) otherwise properly brought before the annual meeting by or at the direction of the BCAC Board or (iii) otherwise properly brought before the annual meeting by a stockholder who (A) was a stockholder of record at the time of the giving of the notice, (B) was a stockholder of record on the record date for the determination of stockholders entitled to vote at the annual meeting and (C) has complied with the notice procedures set forth in BCAC’s existing bylaws. In addition to any other applicable requirements, for a nomination to be made by a stockholder, the stockholder must have given timely notice thereof in proper written form to the secretary of BCAC. To be timely, a stockholder’s notice must be received by the secretary at the principal executive offices of the Combined Company not later than the | The Combined Company Bylaws provide that nominations of persons for election to the Combined Company Board may be made only (i) by or at the direction of the Combined Company Board or (ii) by a stockholder who (A) was a stockholder of record at the time of the giving of the notice, (B) was a stockholder of record on the record date for the determination of stockholders entitled to notice of the annual meeting and on the record date for the determination of stockholders entitled to vote at the annual meeting and (C) has complied with the notice procedures set forth in Combined Company Bylaws. In addition to any other applicable requirements, for a nomination to be made by a stockholder, the stockholder must have given timely notice thereof in proper written form to the secretary of the Combined Company. To be timely, a stockholder’s notice must be received by the secretary at the principal executive offices of the Combined Company not later than the |
BCAC |
Combined Company | |
90th day nor earlier than the 120th day before the one-year anniversary of the immediately preceding annual meeting of stockholders; provided however one-year anniversary of the date of the previous year’s annual meeting, then, for notice by the stockholder to be timely, it must be so received by the secretary not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of (i) the 90th day prior to such annual meeting, or (ii) the tenth day following the day on which public announcement of the date of such annual meeting is first made. |
45th day nor earlier than the 75th day before the one-year anniversary of the date on which the Combined Company first mailed its proxy materials or a notice of availability of proxy materials (whichever is earlier) for the preceding year’s annual meeting; provided however one-year anniversary of the date of the previous year’s annual meeting, then, for notice by the stockholder to be timely, it must be so received by the secretary not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of (i) the 90th day prior to such annual meeting, or (ii) the tenth day following the day on which public announcement of the date of such annual meeting is first made. | |
Business Proposals by Stockholders | ||
BCAC’s existing bylaws provides that no business may be transacted at an annual meeting of stockholders, other than business that is either (i) specified in BCAC’s notice of meeting given by or at the direction of the BCAC Board, (ii) otherwise properly brought before the annual meeting by or at the direction of the BCAC Board or (iii) otherwise properly brought before the annual meeting by a stockholder who (A) was a stockholder of record at the time of the giving of the notice, (B) was a stockholder of record on the record date for the determination of stockholders entitled to vote at the annual meeting and (C) has complied with the notice procedures set forth in BCAC’s existing bylaws. In addition to any other applicable requirements, for a nomination to be made by a stockholder, the stockholder must have given timely notice thereof in proper written form to the secretary of BCAC and such business must otherwise be a proper matter for stockholder action. To be timely, a stockholder’s notice must be received by the secretary at the principal executive offices of the Combined Company not later than the 90th day nor earlier than the 120th day before the one-year anniversary of the immediately preceding annual meeting of stockholders; provided however one-year anniversary of the date of the previous year’s annual meeting, then, for notice by the stockholder to be timely, it must be so received by the secretary not earlier than |
The Combined Company Bylaws provide the proposal of business to be transacted by the stockholders at an annual meeting of stockholders may be made only (i) pursuant to the Combined Company’s proxy materials with respect to such meeting, (ii) by or at the direction of the Combined Company Board, or (iii) by a stockholder of the corporation who (A) is a stockholder of record at the time of the giving of the notice and on the record date for the determination of stockholders entitled to vote at the annual meeting and (B) has timely complied in proper written form with the notice procedures set forth in the Combined Company Bylaws. To be timely, a stockholder’s notice must be received by the secretary at the principal executive offices of the Combined Company not later than the 45th day nor earlier than the 75th day before the one-year anniversary of the date on which the Combined Company first mailed its proxy materials or a notice of availability of proxy materials (whichever is earlier) for the preceding year’s annual meeting; provided however one-year anniversary of the date of the previous year’s annual meeting, then, for notice by the stockholder to be timely, it must be so received by the secretary not earlier than the close of business on the 120th day prior to such annual meeting and not |
BCAC |
Combined Company | |
the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of (i) the 90th day prior to such annual meeting, or (ii) the tenth day following the day on which public announcement of the date of such annual meeting is first made. | later than the close of business on the later of (i) the 90th day prior to such annual meeting, or (ii) the tenth day following the day on which public announcement of the date of such annual meeting is first made. | |
Quorum | ||
BCAC’s existing bylaws provide that (i) a majority of the BCAC Board shall constitute a quorum for the transaction of business at any meeting of the BCAC Board, and (ii) the holders of shares of capital stock representing a majority of the voting power of all outstanding shares of capital stock of BCAC entitled to vote at a meeting shall constitute a quorum for the transaction of business at such meeting. | The Combined Company Bylaws provide that (i) at all meetings of the Combined Company Board, a majority of the total authorized number of directors shall constitute a quorum for the transaction of business, and (ii) the holders of a majority of the stock issued and outstanding and entitled to vote, present in person or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of the stockholders. | |
Special Meetings of the Board | ||
BCAC’s existing bylaws provide that special meetings of the Board (i) may be called by the chairperson of the BCAC Board or BCAC’s president and (ii) shall be called by the chairperson of the BCAC Board, or BCAC’s president or secretary on the written request of at least a majority of directors then in office, or the sole director, as the case may be. | The Combined Company Bylaws provide that special meetings of the Combined Company Board for any purpose or purposes may be called at any time by (i) the chairperson of the Combined Company Board, (ii) Combined Company’s chief executive officer, president or secretary or (iii) a majority of the authorized number of directors. | |
Special Meetings of the Stockholders | ||
BCAC’s existing bylaws provide that special meetings of the stockholders, for any purpose or purposes, may be called only by (i) the chairperson of the BCAC Board, (ii) the chief executive officer of BCAC, or (iii) the BCAC Board pursuant to a resolution adopted by a majority of the BCAC Board. | The Combined Company Bylaws provide that a special meeting of the stockholders, other than those required by statute, may be called only by (i) the Combined Company Board, (ii) the chairperson of the Combined Company Board, (iii) the chief executive officer of the Combined Company or (iv) the president of the Combined Company (in the absence of a chief executive officer). | |
Manner of Acting by Stockholders | ||
BCAC’s existing bylaws provide that all matters other than the election of directors will be determined by the vote of a majority of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon, unless the matter is one upon which, by applicable law, BCAC’s Existing Charter, the existing bylaws or applicable stock exchange rules, a different vote is required, in which case such provision shall govern and control the decision of such matter. | The Combined Company Bylaws provide that except as otherwise required by law, the Combined Company’s Proposed Charter of the Combined Company Bylaws, in all matters other than the election of directors, the affirmative vote of a majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter will be the act of the stockholders. |
BCAC |
Combined Company | |
Stockholder Action without Meeting | ||
BCAC’s Existing Charter provides that any action required or permitted to be taken by the stockholders of BCAC must be effected by a duly called annual or special meeting of such stockholders and may not be effected by written consent of the stockholders. | The Combined Company Bylaws provide that any action required or permitted to be taken by the stockholders must be effected at a duly called annual or special meeting of stockholders and may not be effected by any consent in writing by such stockholders. | |
State Anti-Takeover Statutes | ||
BCAC’s Existing Charter does not opt out of the provisions of Section 203 of the DGCL, which, subject to certain exceptions, would prohibit a company that opts in from engaging in specified business combinations with any interested stockholder for a period of three years following the time that such stockholder became an interested stockholder, unless the business combination or transaction in which such stockholder became an interested stockholder is approved in a prescribed manner. | The Combined Company’s Proposed Charter does not opt out of the provisions of Section 203 of the DGCL, which, subject to certain exceptions, would prohibit a company that opts in from engaging in specified business combinations with any interested stockholder for a period of three years following the time that such stockholder became an interested stockholder, unless the business combination or transaction in which such stockholder became an interested stockholder is approved in a prescribed manner. | |
Indemnification of Directors and Officers | ||
BCAC’s Existing Charter provides that, to the fullest extent permitted by applicable law, BCAC will indemnify and hold harmless each person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that they are or were a director or officer of BCAC or, while a director or officer of BCAC, is or was serving at the request of BCAC as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an “ indemnitee |
The Combined Company’s Proposed Charter provides that the Combined Company shall indemnify, to the fullest extent permitted by applicable law, any director or officer of the Combined Company who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”) by reason of the fact that they are or were a director, officer, employee or agent of the Combined Company or are or were serving at the request of the Combined Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding. The Combined Company shall be required to indemnify a person in connection with a Proceeding initiated by such person only if the Proceeding was authorized by the Combined Company Board. |
BCAC |
Combined Company | |
Limitation on Liability of Directors | ||
BCAC’s Existing Charter provides that a director of BCAC will not be personally liable to BCAC or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended unless they violated their duty of loyalty to BCAC or its stockholders, acted in bad faith, knowingly or intentionally violated the law, authorized unlawful payments of dividends, unlawful stock purchases or unlawful redemptions, or derived improper personal benefit from their actions as directors. | The Combined Company’s Proposed Charter provides that to the fullest extent permitted by law, a director of the Combined Company will not be personally liable to the Combined Company or its stockholders for monetary damages for breach of fiduciary duty as a director. If the DGCL or any other law of the State of Delaware is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. | |
Exclusive Forum Provisions | ||
BCAC’s Existing Charter provides that unless BCAC consents in writing to the selection of an alternative forum, to the fullest extent permitted by the applicable law, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of BCAC, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of BCAC to BCAC or BCAC’s stockholders, (iii) any action asserting a claim against BCAC, its directors, officers or employees arising pursuant to any provision of the DGCL or BCAC’s Existing Charter or existing bylaws, or (iv) any action asserting a claim against BCAC, its directors, officers or employees governed by the internal affairs doctrine. The foregoing will not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. Unless BCAC consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent permitted by law, be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder. |
The Combined Company Bylaws provides that, unless the Combined Company consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for (i) any derivative action or proceeding under Delaware statutory or common law brought on behalf of the Combined Company, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Combined Company to the Combined Company or the Combined Company’s stockholders, (iii) any action arising pursuant to any provision of the DGCL or the Combined Company’s Proposed Charter or the Combined Company Bylaws (as either may be amended from time to time), or (iv) any action asserting a claim governed by the internal affairs doctrine. The Combined Company Bylaws further provide that unless the Combined Company consents in writing to the selection of an alternative forum, the federal district court of the United States of America will be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended. | |
Amendment of Certificate of Incorporation | ||
BCAC’s Existing Charter provides that BCAC may at any time and from time to time to amend, alter, change or repeal any provision contained in BCAC’s Existing Charter, and other provisions authorized by the laws of the State of Delaware at the time in force that may be added or inserted, in the manner now or hereafter | The Combined Company’s Proposed Charter provides that any provision may be amended or repealed in the manner prescribed by the laws of the State of Delaware; provided however |
BCAC |
Combined Company | |
prescribed by BCAC’s Existing Charter and the DGCL; provided, however, that Article IX – Business Combination Requirements; Existence |
Company Board and the affirmative vote of 66 2 /3 % of the then outstanding voting securities of the Combined Company, voting together as a single class, shall be required for the amendment, repeal or modification of certain provisions, including the issuance of preferred stock, the classified board of directors, the removal and election of directors, cumulative voting, actions and special meetings of stockholders, stockholder nominations and amendments of the Proposed Charter. | |
Amendment of Bylaws | ||
BCAC’s existing bylaws provide that BCAC’s Board has the power to adopt, amend, alter or repeal the bylaws by the affirmative vote of a majority of BCAC’s Board. The bylaws also may be adopted, amended, altered or repealed by the stockholders. | The Combined Company Bylaws provide that the bylaws may be adopted, amended or repealed by the stockholders entitled to vote; provided, however, that the affirmative vote of the holders of at least 66 2 ⁄3 % of the total voting power of outstanding voting securities, voting together as a single class, shall be required for the stockholders to alter, amend or repeal, or adopt any bylaw inconsistent with certain provisions of the bylaws, including: meeting of stockholders, powers, number, resignation and vacancies, and removal of directors, indemnification and amendment of the bylaws. The Combined Company Board will also have the power to adopt, amend or repeal bylaws; provided, however, that a bylaw amendment adopted by stockholders which specifies the votes that shall be necessary for the election of directors shall not be further amended or repealed by the Combined Company Board. |
• | 1% of the total number of Combined Company common stock then outstanding; or |
• | the average weekly reported trading volume of the Combined Company common stock during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the sale. |
• | the issuer of the securities that was formerly a shell company has ceased to be a shell company; |
• | the issuer of the securities is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act; |
• | the issuer of the securities has filed all Exchange Act reports and material required to be filed, as applicable, during the preceding 12 months (or such shorter period that the issuer was required to file such reports and materials), other than Form 8-K reports; and |
• | at least one year has elapsed from the time that the issuer filed current Form 10 type information with the SEC reflecting its status as an entity that is not a shell company. |
Name |
Number of Shares |
Purchase Price |
||||||
Entity affiliated with Oceanpine Capital (1) |
9,679,042 | $ | 14,999,999 | |||||
Entity affiliated with Decheng Capital (1) (2) |
8,065,869 | 12,500,000 | ||||||
Kenneth Fong (1) (3) |
193,580 | 299,999 | ||||||
|
|
|
|
|||||
Total |
17,938,491 |
$ |
27,799,997 |
|||||
|
|
|
|
(1) | Additional details regarding this stockholder and the stockholder’s equity holdings are provided in “ Security Ownership of Certain Beneficial Owners and Management of BCAC and the Combined Company. |
(2) | Dan Zabrowski is a venture partner at Decheng Capital and is a member of Apexigen’s board of directors. |
(3) | Kenneth Fong is the current Chair of Apexigen’s board of directors. |
Name |
Number of PIPE Units |
Purchase Price |
||||||
Entity affiliated with Oceanpine Capital (1) |
50,000 | $ | 500,000 | |||||
Entity affiliated with 3E Bioventures Capital (1) |
100,000 | 1,000,000 | ||||||
Entity affiliated with William J. Rutter (1)(2) |
200,000 | 2,000,000 | ||||||
Xiaodong Yang (1)(3) |
20,000 | 200,000 | ||||||
Gordon Ringold (1)(4) |
10,000 | 100,000 | ||||||
|
|
|
|
|||||
Total |
380,000 |
$ |
3,800,000 |
|||||
|
|
|
|
(1) | Additional details regarding this stockholder and the stockholder’s equity holdings are provided in “ Security Ownership of Certain Beneficial Owners and Management of BCAC and the Combined Company. |
(2) | William J. Rutter is a member of Apexigen’s board of directors. |
(3) | Xiaodong Yang is Apexigen’s President and CEO and is a member of Apexigen’s board of directors. |
(4) | Gordon Ringold is a member of Apexigen’s board of directors. |
Page |
||||
Brookline Capital Acquisition Corp. Unaudited Condensed Consolidated Financial Statements |
||||
F-2 | ||||
F-3 | ||||
F-4 | ||||
F-5 | ||||
F-6 | ||||
Brookline Capital Acquisition Corp. Financial Statements |
||||
F-29 |
||||
F-30 |
||||
F-31 |
||||
F-32 |
||||
F-33 |
||||
F-34 |
||||
Apexigen, Inc. Unaudited Condensed Financial Statements |
||||
F-56 |
||||
F-57 |
||||
F-58 |
||||
F-59 |
||||
F-60 |
||||
Apexigen, Inc. Financial Statements |
||||
Audited Financial Statements for the Years Ended December 31, 2020 and 2021 |
||||
F-77 |
||||
F-78 |
||||
F-79 |
||||
F-80 |
||||
F-81 |
||||
F-82 |
March 31, 2022 |
December 31, 2021 |
|||||||
(Unaudited) |
||||||||
Assets: |
||||||||
Current assets: |
||||||||
Cash |
$ | $ | ||||||
Prepaid expenses |
||||||||
Total current assets |
||||||||
Investments held in Trust Account |
||||||||
Total Assets |
$ |
$ |
||||||
Liabilities, Common Stock Subject to Possible Redemption and Stockholders' Equity (Deficit): |
||||||||
Current liabilities: |
||||||||
Accounts payable |
$ | $ | ||||||
Accrued expenses |
||||||||
Accrued expenses - related party |
||||||||
Franchise tax payable |
||||||||
Total current liabilities |
||||||||
Derivative warrant liabilities |
||||||||
Total liabilities |
||||||||
Commitments and Contingencies |
||||||||
Common stock subject to possible redemption, $ |
||||||||
Stockholders' Equity (Deficit): |
||||||||
Preferred stock, $ |
||||||||
Common stock, $ |
||||||||
Additional paid-in capital |
||||||||
Accumulated deficit |
( |
) | ( |
) | ||||
Total stockholders' equity (deficit) |
( |
) | ||||||
Total Liabilities, Common Stock Subject to Possible Redemption and Stockholders' Equity (Deficit) |
$ |
$ |
||||||
For the three months ended March 31, |
||||||||
2022 |
2021 |
|||||||
General and administrative expenses |
$ | $ | ||||||
Administrative expenses—related party |
||||||||
Franchise tax expense |
||||||||
Loss from operations |
( |
) | ( |
) | ||||
Other income (expense) |
||||||||
Change in fair value of derivative warrant liabilities |
( |
) | ( |
) | ||||
Net gain from investments held in Trust Account |
||||||||
Total other income (expense) |
( |
) | ( |
) | ||||
Net loss |
$ | ( |
) | $ | ( |
) | ||
Weighted average shares outstanding—redeemable common stock |
||||||||
Basic and diluted net loss per share, redeemable common stock |
$ | ( |
) | $ | ( |
) | ||
Weighted average shares outstanding—non-redeemable common stock |
||||||||
Basic and diluted net loss per share, non-redeemable common stock |
$ | ( |
) | $ | ( |
) | ||
Common Stock |
Additional Paid- |
Accumulated |
Total Stockholders’ |
|||||||||||||||||
Shares |
Amount |
In Capital |
Deficit |
Equity (Deficit) |
||||||||||||||||
Balance—December 31, 2021 |
$ |
$ |
$ |
( |
$ |
|||||||||||||||
Net loss |
— |
— |
— |
( |
) | ( |
) | |||||||||||||
Balance—March 31, 2022 (Unaudited) |
$ |
$ |
$ |
( |
) |
$ |
( |
) | ||||||||||||
Total |
||||||||||||||||||||
Common Stock |
Additional Paid- |
Accumulated |
Stockholders’ |
|||||||||||||||||
Shares |
Amount |
In Capital |
Deficit |
Equity |
||||||||||||||||
Balance—December 31, 2020 |
$ |
$ |
$ |
( |
$ |
|||||||||||||||
Fair value of public warrants included in the units sold in the initial public offering |
— |
— |
— |
|||||||||||||||||
Capital contribution from Sponsor |
— |
— |
— |
|||||||||||||||||
Offering costs associated with public warrants |
— |
— |
( |
) | — |
( |
) | |||||||||||||
Sale of units in private placement, less derivative warrant liabilities |
— |
|||||||||||||||||||
Remeasurement of common stock subject to possible redemption |
— |
— |
( |
) | — | ( |
) | |||||||||||||
Net loss |
— |
— |
— |
( |
) | ( |
) | |||||||||||||
Balance—March 31, 2021 |
$ |
$ |
$ |
( |
) |
$ |
||||||||||||||
For the three months ended March 31, |
||||||||
2022 |
2021 |
|||||||
Cash Flows from Operating Activities: |
||||||||
Net loss |
$ | ( |
) | $ | ( |
|||
Adjustments to reconcile net loss to net cash used in operating activities: |
||||||||
General and administrative expenses paid by related party under promissory note |
||||||||
Change in fair value of derivative warrant liabilities |
||||||||
Net gain from investments held in Trust Account |
( |
) | ( |
) | ||||
Changes in operating assets and liabilities: |
||||||||
Prepaid expenses |
( |
) | ( |
) | ||||
Account payable |
||||||||
Accrued expenses |
||||||||
Franchise tax payable |
||||||||
Net cash used in operating activities |
( |
) | ( |
) | ||||
Cash Flows from Investing Activities |
||||||||
Cash deposited in Trust Account |
( |
) | ||||||
Net cash used in investing activities |
( |
) | ||||||
Cash Flows from Financing Activities: |
||||||||
Repayment of note payable to related party |
( |
) | ||||||
Proceeds received from initial public offering, gross |
||||||||
Proceeds received from private placement |
||||||||
Offering costs paid |
( |
) | ||||||
Net cash provided by financing activities |
||||||||
Net change in cash |
( |
) | ||||||
Cash—beginning of the period |
||||||||
Cash—end of the period |
$ | $ | ||||||
Supplemental disclosure of noncash activities: |
||||||||
Offering costs included in accrued expenses |
$ | $ | ||||||
Offering costs paid by related party under promissory note |
$ | $ | ||||||
Remeasurement of common stock subject to possible redemption |
$ | $ | ||||||
• | Level 1, defined as observable inputs such as quoted prices for identical instruments in active markets; |
• | Level 2, defined as inputs other than quoted prices in active markets that are either directly or indirectly observable such as quoted prices for similar instruments in active markets or quoted prices for identical or similar instruments in markets that are not active; and |
• | Level 3, defined as unobservable inputs in which little or no market data exists, therefore requiring an entity to develop its own assumptions, such as valuations derived from valuation techniques in which one or more significant inputs or significant value drivers are unobservable. |
For the three months ended March 31, |
||||||||||||||||
2022 |
2021 |
|||||||||||||||
redeemable |
non-redeemable |
redeemable |
non-redeemable |
|||||||||||||
Basic and diluted net loss per common share: |
||||||||||||||||
Numerator: |
||||||||||||||||
Allocation of net loss |
$ | ( |
) | $ | ( |
) | $ | ( |
) | $ | ( |
) | ||||
Denominator: |
||||||||||||||||
Basic and diluted weighted average common shares outstanding |
||||||||||||||||
Basic and diluted net loss per common share |
$ | ( |
) | $ | ( |
) | $ | ( |
) | $ | ( |
) | ||||
• | in whole and not in part; |
• | at a price of $ |
• | upon a minimum of |
• | if, and only if, the last sale price of the common stock equals or exceeds $18.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 30-trading day period commencing once the Public Warrants become exercisable and ending on the third trading day prior to the date on which the Company sends the notice of redemption to the warrantholders. |
• | if, and only if, there is a current registration statement in effect with respect to the shares of common stock underlying such Public Warrants at the time of redemption and for the entire |
Gross Proceeds |
$ | |||
Less: |
||||
Proceeds allocated to public warrants |
( |
) | ||
Common stock issuance costs |
( |
) | ||
Plus: |
||||
Remeasurement of carrying value to redemption value |
||||
Common stock subject to possible redemption |
$ | |||
Description |
Quoted Prices in Active Markets (Level 1) |
Significant Other Observable Inputs (Level 2) |
Significant Other Unobservable Inputs (Level 3) |
|||||||||
Assets — Investments held in Trust Account: |
||||||||||||
Mutual funds (1) |
$ | $ | — | $ | — | |||||||
Liabilities: |
||||||||||||
Derivative warrant liabilities — Private |
$ | — | $ | — | $ |
(1) |
Excludes $ |
Description |
Quoted Prices in Active Markets (Level 1) |
Significant Other Observable Inputs (Level 2) |
Significant Other Unobservable Inputs (Level 3) |
|||||||||
Assets — Investments held in Trust Account: |
||||||||||||
Mutual funds |
$ | $ | — | $ | — | |||||||
U.S. Treasury Securities |
$ | $ | — | $ | — | |||||||
Liabilities: |
||||||||||||
Derivative warrant liabilities — Private |
$ | — | $ | — | $ |
As of March 31, 2022 |
As of December 31, 2021 |
|||||||
Volatility |
% | % | ||||||
Stock price |
$ | $ | ||||||
Expected life of the options to convert |
||||||||
Risk-free rate |
% | % | ||||||
Dividend yield |
% | % |
Level 3—Derivative warrant liabilities at December 31, 2020 |
$ | |||
Issuance of Private Warrants |
||||
Change in fair value of derivative warrant liabilities |
||||
Level 3—Derivative warrant liabilities at March 31, 2021 |
$ | |||
Level 3—Derivative warrant liabilities at January 1, 2022 |
$ | |||
Change in fair value of derivative warrant liabilities |
||||
Level 3—Derivative warrant liabilities at March 31, 2022 |
$ | |||
December 31, |
||||||||
2021 |
2020 |
|||||||
Assets: |
||||||||
Current assets: |
||||||||
Cash |
$ | $ | ||||||
Prepaid expenses |
— | |||||||
Total current assets |
||||||||
Investments held in Trust Account |
— | |||||||
Deferred offering costs associated with the proposed public offering |
— | |||||||
Total Assets |
$ |
$ |
||||||
Liabilities, Common Stock Subject to Possible Redemption and Stockholders’ Equity: |
||||||||
Current liabilities: |
||||||||
Accounts payable |
$ | $ | — | |||||
Accrued expenses |
— | |||||||
Franchise tax payable |
— | |||||||
Note payable — related party |
— | |||||||
Total current liabilities |
||||||||
Derivative warrant liabilities |
— | |||||||
Total liabilities |
||||||||
Commitments and Contingencies |
||||||||
Common stock subject to possible redemption ; redemption value of $ |
— | |||||||
Stockholders’ Equity: |
||||||||
Preferred stock, $ |
||||||||
Common stock, $ |
||||||||
Additional paid-in capital |
||||||||
Accumulated deficit |
( |
) | ( |
) | ||||
Total stockholders’ equity |
||||||||
Total Liabilities, Common Stock Subject to Possible Redemption and Stockholders’ Equity |
$ |
$ |
||||||
For the year ended December 31, 2021 |
For the period from May 27, 2020 (inception) through December 31, 2020 |
|||||||
General and administrative expenses |
$ | $ | ||||||
Administrative expenses — related party |
— | |||||||
Franchise tax expense |
— | |||||||
|
|
|
|
|||||
Loss from operations |
( |
) | ( |
) | ||||
Other income (expense) |
||||||||
Change in fair value of derivative warrant liabilities |
— | |||||||
Offering costs allocated to private warrants |
|
|
( |
) |
|
|
— |
|
Net gain from investments held in Trust Account |
— | |||||||
|
|
|
|
|||||
Total other income |
— | |||||||
|
|
|
|
|||||
Net loss |
$ | ( |
) | $ | ( |
) | ||
|
|
|
|
|||||
Weighted average shares outstanding — redeemable common stock |
— | |||||||
|
|
|
|
|||||
Basic and diluted net loss per share, redeemable common stock |
$ | ( |
) | $ | — | |||
|
|
|
|
|||||
Weighted average shares outstanding — non-redeemable common stock |
||||||||
|
|
|
|
|||||
Basic and diluted net loss per share, non-redeemable common stock |
$ | ( |
) | $ | ( |
) | ||
|
|
|
|
Common Stock |
Additional Paid-In Capital |
Accumulated Deficit |
Total Stockholders’ Equity |
|||||||||||||||||
Shares |
Amount |
|||||||||||||||||||
Balance — May 27, 2020 (inception) |
— |
$ |
$ |
$ |
$ |
|||||||||||||||
Issuance of common stock to Sponsor |
— |
|||||||||||||||||||
Sponsor forfeiture of founder shares |
( |
) | ( |
) | — |
— |
||||||||||||||
Issuance of founder shares to affiliates of underwriter |
— |
|||||||||||||||||||
Net loss |
— | — | — | ( |
) | ( |
) | |||||||||||||
Balance — December 31, 2020 |
$ |
$ |
$ |
( |
) |
$ |
||||||||||||||
Common Stock |
Additional Paid-In Capital |
Accumulated Deficit |
Total Stockholders’ Equity |
|||||||||||||||||
Shares |
Amount |
|||||||||||||||||||
Balance — December 31, 2020 |
$ |
$ |
$ |
( |
) |
$ |
||||||||||||||
Fair value of public warrants included in the units sold in the initial public offering |
— |
— |
— |
|||||||||||||||||
Capital contribution from Sponsor |
— |
— |
— |
|||||||||||||||||
Offering costs associated with public warrants |
— |
— |
( |
) | — |
( |
) | |||||||||||||
Sale of units in private placement, less derivative warrant liabilities |
— |
|||||||||||||||||||
Remeasurement of common stock subject to possible redemption |
— | — | ( |
) | — | ( |
) | |||||||||||||
Net loss |
— | — | — | ( |
) | ( |
) | |||||||||||||
Balance — December 31, 2021 |
$ |
$ |
$ |
( |
) | $ |
||||||||||||||
For the year ended December 31, 2021 |
For the period from May 27, 2020 (inception) through December 31, 2020 |
|||||||
Cash Flows from Operating Activities: |
||||||||
Net loss |
$ | ( |
) | $ | ( |
) | ||
Adjustments to reconcile net loss to net cash used in operating activities: |
||||||||
General and administrative expenses paid by related party under promissory note |
||||||||
Change in fair value of derivative warrant liabilities |
( |
) | — | |||||
Offering costs allocated to private warrants |
|
|
|
|
|
|
— |
|
Net gain from investments held in Trust Account |
( |
) | — | |||||
Changes in operating assets and liabilities: |
||||||||
Prepaid expenses |
( |
) | — | |||||
Account payable |
— | |||||||
Accrued expenses |
— | |||||||
Franchise tax payable |
— | |||||||
|
|
|
|
|||||
Net cash used in operating activities |
( |
) | — | |||||
|
|
|
|
|||||
Cash Flows from Investing Activities |
||||||||
Cash deposited in Trust Account |
( |
) | — | |||||
|
|
|
|
|||||
Net cash used in investing activities |
( |
) | — | |||||
|
|
|
|
|||||
Cash Flows from Financing Activities: |
||||||||
Repayment of note payable to related party |
( |
) | — | |||||
Proceeds from issuance of representative shares |
— | |||||||
Proceeds received from initial public offering, gross |
— | |||||||
Proceeds received from private placement |
— | |||||||
Offering costs paid |
( |
) | — | |||||
|
|
|
|
|||||
Net cash provided by financing activities |
||||||||
|
|
|
|
|||||
Net change in cash |
||||||||
Cash — beginning of the period |
||||||||
|
|
|
|
|||||
Cash — end of the period |
$ |
$ | ||||||
|
|
|
|
|||||
Supplemental disclosure of noncash activities: |
||||||||
Offering costs included in accrued expenses |
$ | $ | — | |||||
|
|
|
|
|||||
Offering costs paid by related party under promissory note |
$ | $ | ||||||
|
|
|
|
|||||
Deferred offering costs paid by Sponsor in exchange for common stock |
$ | — | $ | |||||
|
|
|
|
|||||
Remeasurement of common stock subject to possible redemption |
$ |
$ |
— |
|||||
|
|
|
|
• | Level 1, defined as observable inputs such as quoted prices for identical instruments in active markets; |
• | Level 2, defined as inputs other than quoted prices in active markets that are either directly or indirectly observable such as quoted prices for similar instruments in active markets or quoted prices for identical or similar instruments in markets that are not active; and |
• | Level 3, defined as unobservable inputs in which little or no market data exists, therefore requiring an entity to develop its own assumptions, such as valuations derived from valuation techniques in which one or more significant inputs or significant value drivers are unobservable. |
For the year ended December 31, 2021 |
For the period from May 27, 2020 (inception) through December 31, 2020 |
|||||||||||
redeemable |
non-redeemable |
non-redeemable |
||||||||||
Basic and diluted net loss per common share: |
||||||||||||
Numerator: |
||||||||||||
Allocation of net loss |
( |
) | ( |
) | ( |
) | ||||||
Denominator: |
||||||||||||
Basic and diluted weighted average common shares outstanding |
||||||||||||
Basic and diluted net loss per common share |
$ | ( |
) | $ | ( |
) | $ | ( |
) | |||
• | in whole and not in part; |
• | at a price of $ |
• | upon a minimum of |
• | if, and only if, the last sale price of the common stock equals or exceeds $18.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 30-trading day period commencing once the Public Warrants become exercisable and ending on the third trading day prior to the date on which the Company sends the notice of redemption to the warrantholders. |
• | if, and only if, there is a current registration statement in effect with respect to the shares of common stock underlying such Public Warrants at the time of redemption and for the entire |
Gross proceeds |
$ | |||
Less: |
||||
Proceeds allocated to public warrants |
( |
) | ||
Common stock issuance costs |
( |
) | ||
Plus: |
||||
Remeasurement of carrying value to redemption value |
||||
Common stock subject to possible redemption |
$ | |||
Description |
Quoted Prices in Active Markets (Level 1) |
Significant Other Observable Inputs (Level 2) |
Significant Other Unobservable Inputs (Level 3) |
|||||||||
Assets — Investments held in Trust Account: |
||||||||||||
Mutual funds |
$ | $ | — | $ | — | |||||||
U.S. Treasury Securities |
$ | $ | — | $ | — | |||||||
Liabilities: |
||||||||||||
Derivative warrant liabilities — Private |
$ | — | $ | — | $ |
As of February 2, 2021 |
As of December 31, 2021 |
|||||||
Volatility |
% |
% | ||||||
Stock price |
$ |
$ |
||||||
Expected life of the options to convert |
||||||||
Risk-free rate |
% |
% | ||||||
Dividend yield |
% |
% |
Level 3 — Derivative warrant liabilities at January 1, 2021 |
$ | |||
Issuance of Private Warrants |
||||
Change in fair value of derivative warrant liabilities |
( |
) | ||
Level 3 — Derivative warrant liabilities at December 31, 2021 |
$ | |||
December 31, 2021 |
||||
Current |
||||
Federal |
$ | |||
State |
||||
Deferred |
||||
Federal |
( |
) | ||
State |
||||
Valuation allowance |
||||
Income tax provision |
$ | — | ||
December 31, 2021 |
||||
Deferred tax assets: |
||||
Start-up/Organization costs |
$ | |||
Net operating loss carryforwards |
||||
Total deferred tax assets |
||||
Valuation allowance |
( |
) | ||
Deferred tax asset, net of allowance |
$ | |||
December 31, 2021 |
||||
Statutory Federal income tax rate |
% | |||
Meals & entertainment |
% | |||
Financing costs |
% | |||
Change in fair value of warrant liabilities |
% | |||
Change in Valuation Allowance |
( |
)% | ||
Income Taxes Benefit |
% | |||
December 31, 2021 |
March 31, 2022 |
|||||||
(Unaudited) |
||||||||
Assets |
||||||||
Current assets: |
||||||||
Cash and cash equivalents |
$ | 23,443 | $ | 17,551 | ||||
Short-term investments |
12,917 | 10,387 | ||||||
Prepaid expenses and other current assets |
1,681 | 2,569 | ||||||
|
|
|
|
|||||
Total current assets |
38,041 | 30,507 | ||||||
Property and equipment, net |
245 | 217 | ||||||
Right-of-use |
483 | 389 | ||||||
Other assets |
327 | 331 | ||||||
|
|
|
|
|||||
Total assets |
$ | 39,096 | $ | 31,444 | ||||
|
|
|
|
|||||
Liabilities, Convertible Preferred Stock and Stockholders’ Deficit |
||||||||
Current liabilities: |
||||||||
Accounts payable |
$ | 4,487 | $ | 4,681 | ||||
Accrued liabilities |
8,488 | 8,801 | ||||||
Deferred revenue |
3,610 | 4,117 | ||||||
Lease liabilities, current portion |
369 | 378 | ||||||
|
|
|
|
|||||
Total current liabilities |
16,954 | 17,977 | ||||||
Lease liabilities, less current portion |
141 | 35 | ||||||
|
|
|
|
|||||
Total liabilities |
17,095 | 18,012 | ||||||
Commitment and contingencies (Note 10) |
||||||||
Convertible preferred stock, $0.001 par value, 148,570,771 shares authorized at December 31, 2021 and March 31, 2022 (unaudited); 145,130,628 shares issued and outstanding as of December 31, 2021 and March 31, 2022 (unaudited), aggregate liquidation preference of $160,085 as of March 31, 2022 (unaudited) |
158,707 | 158,707 | ||||||
Stockholders’ deficit: |
||||||||
Common stock, $0.001 par value; 230,000,000 shares authorized as of December 31, 2021 and March 31, 2022 (unaudited); 31,070,665 and 31,395,489 shares issued and outstanding as of December 31, 2021 and March 31, 2022 (unaudited), respectively |
31 | 31 | ||||||
Additional paid-in capital |
7,991 | 8,462 | ||||||
Accumulated deficit |
(144,724 | ) | (153,766 | ) | ||||
Accumulated other comprehensive loss |
(4 | ) | (2 | ) | ||||
|
|
|
|
|||||
Total stockholders’ deficit |
(136,706 | ) | (145,275 | ) | ||||
|
|
|
|
|||||
Total liabilities, convertible preferred stock and stockholders’ deficit |
$ | 39,096 | $ | 31,444 | ||||
|
|
|
|
Three Months Ended March 31, |
||||||||
2021 |
2022 |
|||||||
Operating expenses: |
||||||||
Research and development |
$ | 4,963 | $ | 7,108 | ||||
General and administrative |
1,539 | 1,986 | ||||||
|
|
|
|
|||||
Total operating expenses |
6,502 | 9,094 | ||||||
|
|
|
|
|||||
Loss from operations |
(6,502 | ) | (9,094 | ) | ||||
Interest income, net |
15 | 52 | ||||||
|
|
|
|
|||||
Net loss |
(6,487 | ) | (9,042 | ) | ||||
|
|
|
|
|||||
Net loss per share attributable to common stockholders |
$ | (0.21 | ) | $ | (0.29 | ) | ||
|
|
|
|
|||||
Weighted-average common shares used to compute net loss per share, basic and diluted |
30,651,063 | 31,395,518 | ||||||
|
|
|
|
|||||
Comprehensive Loss: |
||||||||
Net loss |
$ | (6,487 | ) | $ | (9,042 | ) | ||
Other comprehensive loss |
||||||||
Unrealized (loss) gain on marketable securities |
(6 | ) | 2 | |||||
|
|
|
|
|||||
Comprehensive loss |
$ | (6,493 | ) | $ | (9,040 | ) | ||
|
|
|
|
Three Months Ended March 31, 2021 |
||||||||||||||||||||||||||||||||
Convertible Preferred Stock |
Common Stock |
Additional Paid-In Capital |
Accumulated Deficit |
Accumulated Other Comprehensive Loss |
Total Stockholders’ Deficit |
|||||||||||||||||||||||||||
Shares |
Amounts |
Shares |
Amounts |
|||||||||||||||||||||||||||||
Balance at January 1, 2021 |
145,130,628 | $ | 158,707 | 30,521,693 | $ | 31 | $ | 6,750 | $ | (115,808 | ) | $ | 3 | $ | (109,024 | ) | ||||||||||||||||
Exercise of stock options |
— | — | 388,972 | — | 24 | — | — | 24 | ||||||||||||||||||||||||
Stock-based compensation |
— | — | — | — | 360 | — | — | 360 | ||||||||||||||||||||||||
Net loss |
— | — | — | — | — | (6,487 | ) | — | (6,487 | ) | ||||||||||||||||||||||
Other comprehensive loss |
— | — | — | — | — | — | (6 | ) | (6 | ) | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Balance at March 31, 2021 |
145,130,628 | $ | 158,707 | 30,910,665 | $ | 31 | $ | 7,134 | $ | (122,295 | ) | $ | (3 | ) | $ | (115,133 | ) | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Three Months Ended March 31, 2022 |
||||||||||||||||||||||||||||||||
Convertible Preferred Stock |
Common Stock |
Additional Paid-In Capital |
Accumulated Deficit |
Accumulated Other Comprehensive Income (Loss) |
Total Stockholders’ Deficit |
|||||||||||||||||||||||||||
Shares |
Amounts |
Shares |
Amounts |
|||||||||||||||||||||||||||||
Balance at January 1, 2022 |
145,130,628 | $ | 158,707 | 31,070,665 | $ | 31 | $ | 7,991 | $ | (144,724 | ) | $ | (4 | ) | $ | (136,706 | ) | |||||||||||||||
Exercise of stock options |
— | — | 324,824 | — | 50 | — | — | 50 | ||||||||||||||||||||||||
Stock-based compensation |
— | — | — | — | 421 | — | — | 421 | ||||||||||||||||||||||||
Net loss |
— | — | — | — | — | (9,042 | ) | — | (9,042 | ) | ||||||||||||||||||||||
Other comprehensive gain |
— | — | — | — | — | — | 2 | 2 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Balance at March 31, 2022 |
145,130,628 | $ | 158,707 | 31,395,489 | $ | 31 | $ | 8,462 | $ | (153,766 | ) | $ | (2 | ) | $ | (145,275 | ) | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
||||||||
2021 |
2022 |
|||||||
CASH FLOWS FROM OPERATING ACTIVITIES: |
||||||||
Net loss |
$ | (6,487 | ) | $ | (9,042 | ) | ||
Adjustments to reconcile net loss to net cash used in operating activities: |
||||||||
Depreciation |
26 | 28 | ||||||
Stock-based compensation |
360 | 421 | ||||||
Accretion of discount and amortization of premiums on marketable securities |
52 | 18 | ||||||
Non-cash lease expense |
205 | 100 | ||||||
Other |
4 | — | ||||||
Changes in current assets and liabilities: |
||||||||
Prepaid expenses and other current assets |
202 | (18 | ) | |||||
Other assets |
(100 | ) | (100 | ) | ||||
Accounts payable |
(651 | ) | (402 | ) | ||||
Accrued expenses |
(630 | ) | 251 | |||||
Deferred revenue |
370 | 507 | ||||||
Lease liabilities |
(205 | ) | (103 | ) | ||||
|
|
|
|
|||||
Net cash used in operating activities |
(6,854 | ) | (8,340 | ) | ||||
CASH FLOWS FROM INVESTING ACTIVITIES: |
||||||||
Purchases of property and equipment |
(54 | ) | (43 | ) | ||||
Purchases of marketable securities |
(13,389 | ) | (8,937 | ) | ||||
Sales of marketable securities |
21,957 | 11,500 | ||||||
|
|
|
|
|||||
Net cash provided by investing activities |
8,514 | 2,520 | ||||||
CASH FLOWS FROM FINANCING ACTIVITIES: |
||||||||
Payments of deferred transaction costs |
— | (122 | ) | |||||
Proceeds from exercise of stock options |
24 | 50 | ||||||
|
|
|
|
|||||
Net cash provided by (used in) financing activities |
24 | (72 | ) | |||||
|
|
|
|
|||||
Net (decrease) increase in cash and cash equivalents |
1,684 | (5,892 | ) | |||||
Cash and cash equivalents, beginning of period |
25,284 | 23,443 | ||||||
|
|
|
|
|||||
Cash and cash equivalents, end of period |
$ | 26,968 | $ | 17,551 | ||||
|
|
|
|
December 31, 2021 |
||||||||||||||||
Level 1 |
Level 2 |
Level 3 |
Total |
|||||||||||||
Financial assets: |
||||||||||||||||
Money market funds |
$ | 18,526 | $ | — | $ | — | $ | 18,526 | ||||||||
Commercial paper |
— | 5,498 | — | 5,498 | ||||||||||||
Corporate debt securities |
— | 4,512 | — | 4,512 | ||||||||||||
Government debt securities |
— | 1,503 | — | 1,503 | ||||||||||||
Asset backed securities |
— | 1,404 | — | 1,404 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 18,526 | $ | 12,917 | $ | — | $ | 31,443 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Financial liability: |
||||||||||||||||
Preferred stock warrant liability |
$ | — | $ | — | $ | 2 | $ | 2 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | — | $ | — | $ | 2 | $ | 2 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
March 31, 2022 |
||||||||||||||||
Level 1 |
Level 2 |
Level 3 |
Total |
|||||||||||||
Financial assets: |
||||||||||||||||
Money market funds |
$ | 15,112 | $ | — | $ | — | $ | 15,112 | ||||||||
U.S. treasury securities |
8,987 | — | — | 8,987 | ||||||||||||
Commercial paper |
— | 1,400 | — | 1,400 | ||||||||||||
Corporate debt securities |
— | 1,001 | — | 1,001 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 24,099 | $ | 2,401 | $ | — | $ | 26,500 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Financial liability: |
||||||||||||||||
Preferred stock warrant liability |
$ | — | $ | — | $ | 2 | $ | 2 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | — | $ | — | $ | 2 | $ | 2 | ||||||||
|
|
|
|
|
|
|
|
December 31, 2021 |
||||||||||||||||
Amortized Cost |
Unrealized |
Estimated Fair Value |
||||||||||||||
Gains |
Losses |
|||||||||||||||
Cash and cash equivalents: |
||||||||||||||||
Cash |
$ | 4,917 | $ | — | $ | — | $ | 4,917 | ||||||||
Money market funds |
18,526 | — | — | 18,526 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total cash and cash equivalents |
$ | 23,443 | $ | — | $ | — | $ | 23,443 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Marketable securities: |
||||||||||||||||
Commercial paper |
$ | 5,498 | $ | — | $ | — | $ | 5,498 | ||||||||
Corporate debt securities |
4,515 | — | (3 | ) | 4,512 | |||||||||||
Government debt securities |
1,503 | — | — | 1,503 | ||||||||||||
Asset backed securities |
1,405 | — | (1 | ) | 1,404 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total marketable securities |
$ | 12,921 | $ | — | $ | (4 | ) | $ | 12,917 | |||||||
|
|
|
|
|
|
|
|
|||||||||
March 31, 2022 |
||||||||||||||||
Amortized Cost |
Unrealized |
Estimated Fair Value |
||||||||||||||
Gains |
Losses |
|||||||||||||||
Cash and cash equivalents: |
||||||||||||||||
Cash |
$ | 1,438 | $ | — | $ | — | $ | 1,438 | ||||||||
Money market funds |
15,112 | — | — | 15,112 | ||||||||||||
Corporate debt securities |
1,001 | — | — | 1,001 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total cash and cash equivalents |
$ | 17,551 | $ | — | $ | — | $ | 17,551 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Marketable securities: |
||||||||||||||||
U.S. treasury securities |
$ | 8,989 | $ | — | $ | (2 | ) | $ | 8,987 | |||||||
Commerical paper |
1,400 | — | — | 1,400 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total marketable securities |
$ | 10,389 | $ | — | $ | (2 | ) | $ | 10,387 | |||||||
|
|
|
|
|
|
|
|
December31, 2021 |
March 31, 2022 |
|||||||
Laboratory equipment |
$ | 943 | $ | 894 | ||||
Furniture and fixtures |
28 | 28 | ||||||
Office equipment |
25 | 25 | ||||||
Software |
12 | 12 | ||||||
|
|
|
|
|||||
Total property and equipment |
1,008 | 959 | ||||||
Less: accumulated depreciation |
(763 | ) | (742 | ) | ||||
|
|
|
|
|||||
Total property and equipment, net |
$ | 245 | $ | 217 | ||||
|
|
|
|
December 31, 2021 |
March 31, 2022 |
|||||||
Accrued clinical trial and manufacturing costs |
$ | 6,472 | $ | 7,047 | ||||
Accrued personnel costs |
1,172 | 796 | ||||||
Other accrued liabilities |
844 | 958 | ||||||
|
|
|
|
|||||
Total accrued liabilities |
$ | 8,488 | $ | 8,801 | ||||
|
|
|
|
Year ending December 31, | Operating Leases |
|||
2022 (9 months remaining) |
$ | 318 | ||
2023 |
106 | |||
|
|
|||
Total undiscounted future lease payments |
424 | |||
Less: imputed interest |
(11 | ) | ||
|
|
|||
Total lease liabilities |
$ | 413 | ||
|
|
Convertible Preferred Stock |
Shares Authorized |
Shares Issued and Outstanding |
Carrying Value |
Liquidation Preference |
||||||||||||
Series A-1 |
39,196,116 | 39,196,116 | $ | 19,787 | $ | 19,990 | ||||||||||
Series A-2 |
12,652,762 | 12,625,343 | 2,525 | 2,525 | ||||||||||||
Series B |
14,218,546 | 14,218,546 | 14,895 | 15,000 | ||||||||||||
Series C |
82,503,347 | 79,090,623 | 121,500 | 122,570 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
148,570,771 | 145,130,628 | $ | 158,707 | $ | 160,085 | ||||||||||
|
|
|
|
|
|
|
|
Series A-1 convertible preferred stock outstanding, as converted |
39,196,116 | |||
Series A-2 convertible preferred stock outstanding, as converted |
12,625,343 | |||
Series B convertible preferred stock outstanding, as converted |
14,218,546 | |||
Series C convertible preferred stock outstanding, as converted |
79,090,623 | |||
Options issued and outstanding |
33,650,492 | |||
Options available for future grants |
9,219,183 | |||
Common stock warrants |
102,998 | |||
Series A-2 preferred stock warrant |
27,419 | |||
|
|
|||
Total common stock reserved for issuance |
188,130,720 | |||
|
|
Three Months Ended March 31, |
||||||||
2021 |
2022 |
|||||||
Research and development |
$ | 132 | $ | 119 | ||||
General and administrative |
228 | 302 | ||||||
|
|
|
|
|||||
Total stock-based compensation |
$ | 360 | $ | 421 | ||||
|
|
|
|
As of March 31, |
||||||||
2021 |
2022 |
|||||||
Series A-1 convertible preferred stock |
39,196,116 | 39,196,116 | ||||||
Series A-2 convertible preferred stock |
12,625,343 | 12,625,343 | ||||||
Series B convertible preferred stock |
14,218,546 | 14,218,546 | ||||||
Series C convertible preferred stock |
79,090,623 | 79,090,623 | ||||||
Stock options |
36,446,481 | 33,650,492 | ||||||
Common stock warrants |
102,998 | 102,998 | ||||||
Series A-2 preferred stock warrant |
27,419 | 27,419 | ||||||
|
|
|
|
|||||
Total common stock reserved for issuance |
181,707,526 | 178,911,537 | ||||||
|
|
|
|
December 31, |
||||||||
2020 |
2021 |
|||||||
Assets |
||||||||
Current assets: |
||||||||
Cash and cash equivalents |
$ | 25,284 | $ | 23,443 | ||||
Short-term investments |
35,182 | 12,917 | ||||||
Prepaid expenses and other current assets |
887 | 1,681 | ||||||
|
|
|
|
|||||
Total current assets |
61,353 | 38,041 | ||||||
Property and equipment, net |
309 | 245 | ||||||
Right-of-use |
1,124 | 483 | ||||||
Other assets |
59 | 327 | ||||||
|
|
|
|
|||||
Total assets |
$ | 62,845 | $ | 39,096 | ||||
|
|
|
|
|||||
Liabilities, Convertible Preferred Stock and Stockholders’ Deficit |
||||||||
Current liabilities: |
||||||||
Accounts payable |
$ | 3,522 | $ | 4,487 | ||||
Accrued liabilities |
6,597 | 8,488 | ||||||
Deferred revenue |
1,887 | 3,610 | ||||||
Lease liabilities, current portion |
614 | 369 | ||||||
|
|
|
|
|||||
Total current liabilities |
12,620 | 16,954 | ||||||
Lease liabilities, less current portion |
542 | 141 | ||||||
|
|
|
|
|||||
Total liabilities |
13,162 | 17,095 | ||||||
Commitment and contingencies (Note 10) |
||||||||
Convertible preferred stock, $0.001 par value, 148,570,771 shares authorized at December 31, 2020 and 2021;145,130,628 shares issued and outstanding as of December 31, 2020 and 2021; aggregate liquidation preference of $160,085 as of December 31, 2021 |
158,707 | 158,707 | ||||||
Stockholders’ deficit: |
||||||||
Common stock, $0.001 par value; 230,000,000 shares authorized as of December 31, 2020 and 2021; 30,521,693 and 31,070,665 shares issued and outstanding as of December 31, 2020 and 2021, respectively |
31 | 31 | ||||||
Additional paid-in capital |
6,750 | 7,991 | ||||||
Accumulated deficit |
(115,808 | ) | (144,724 | ) | ||||
Accumulated other comprehensive (loss) income |
3 | (4 | ) | |||||
|
|
|
|
|||||
Total stockholders’ deficit |
(109,024 | ) | (136,706 | ) | ||||
|
|
|
|
|||||
Total liabilities, convertible preferred stock and stockholders’ deficit |
$ | 62,845 | $ | 39,096 | ||||
|
|
|
|
Years Ended December 31, |
||||||||
2020 |
2021 |
|||||||
Operating expenses: |
||||||||
Research and development |
$ | 18,770 | $ | 21,664 | ||||
General and administrative |
5,774 | 7,293 | ||||||
|
|
|
|
|||||
Total operating expenses |
24,544 | 28,957 | ||||||
|
|
|
|
|||||
Loss from operations |
(24,544 | ) | (28,957 | ) | ||||
Interest income, net |
421 | 41 | ||||||
|
|
|
|
|||||
Net loss |
$ | (24,123 | ) | $ | (28,916 | ) | ||
|
|
|
|
|||||
Net loss per share attributable to common stockholders, basic and diluted |
$ | (0.79 | ) | $ | (0.94 | ) | ||
|
|
|
|
|||||
Weighted average common shares used to compute net loss per share, basic and diluted |
30,512,368 | 30,901,032 | ||||||
|
|
|
|
|||||
Comprehensive Loss: |
||||||||
Net loss |
(24,123 | ) | (28,916 | ) | ||||
Other comprehensive loss |
||||||||
Unrealized gain (loss) on marketable securities |
5 | (7 | ) | |||||
|
|
|
|
|||||
Comprehensive loss |
$ | (24,118 | ) | $ | (28,923 | ) | ||
|
|
|
|
Convertible Preferred Stock |
Common Stock |
Additional Paid-In Capital |
Accumulated Deficit |
Other Comprehensive (Loss) Income |
Total Stockholders’ Deficit |
|||||||||||||||||||||||||||
Shares |
Amounts |
Shares |
Amounts |
|||||||||||||||||||||||||||||
Balance at December 31, 2019 |
136,528,546 | $ | 145,434 | 30,497,526 | $ | 30 | $ | 5,391 | $ | (91,685 | ) | $ | (2 | ) | $ | (86,266 | ) | |||||||||||||||
Issuance of Series C convertible preferred stock, net of issuance costs of $58 |
8,602,082 | 13,273 | — | — | — | — | — | — | ||||||||||||||||||||||||
Exercise of stock options |
— | — | 24,167 | 1 | 14 | — | — | 15 | ||||||||||||||||||||||||
Stock-based compensation |
— | — | — | — | 1,345 | — | — | 1,345 | ||||||||||||||||||||||||
Net loss |
— | — | — | — | — | (24,123 | ) | — | (24,123 | ) | ||||||||||||||||||||||
Other comprehensive gain |
— | — | — | — | — | — | 5 | 5 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Balance at December 31, 2020 |
145,130,628 | 158,707 | 30,521,693 | 31 | 6,750 | (115,808 | ) | 3 | (109,024 | ) | ||||||||||||||||||||||
Exercise of stock options |
— | — | 548,972 | — | 98 | — | — | 98 | ||||||||||||||||||||||||
Stock-based compensation |
— | — | — | — | 1,143 | — | — | 1,143 | ||||||||||||||||||||||||
Net loss |
— | — | — | — | — | (28,916 | ) | — | (28,916 | ) | ||||||||||||||||||||||
Other comprehensive loss |
— | — | — | — | — | — | (7 | ) | (7 | ) | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Balance at December 31, 2021 |
145,130,628 | $ | 158,707 | 31,070,665 | $ | 31 | $ | 7,991 | $ | (144,724 | ) | $ | (4 | ) | $ | (136,706 | ) | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31, |
||||||||
2020 |
2021 |
|||||||
CASH FLOWS FROM OPERATING ACTIVITIES: |
||||||||
Net loss |
$ | (24,123 | ) | $ | (28,916 | ) | ||
Adjustments to reconcile net loss to net cash used in operating activities: |
||||||||
Depreciation |
127 | 105 | ||||||
Stock-based compensation |
1,345 | 1,143 | ||||||
Accretion of discount and amortization of premiums on marketable securities |
127 | 204 | ||||||
Non-cash lease expense |
829 | 522 | ||||||
Other |
(1 | ) | 6 | |||||
Changes in current assets and liabilities: |
||||||||
Prepaid expenses and other current assets |
312 | (352 | ) | |||||
Other assets |
— | (168 | ) | |||||
Accounts payable |
813 | 841 | ||||||
Accrued expenses |
(444 | ) | 1,521 | |||||
Deferred revenue |
1,887 | 1,723 | ||||||
Lease liabilities |
(829 | ) | (531 | ) | ||||
|
|
|
|
|||||
Net cash used in operating activities |
(19,957 | ) | (23,902 | ) | ||||
CASH FLOWS FROM INVESTING ACTIVITIES: |
||||||||
Purchases of property and equipment |
— | (54 | ) | |||||
Purchases of marketable securities |
(67,344 | ) | (20,179 | ) | ||||
Sales of marketable securities |
43,183 | 42,257 | ||||||
|
|
|
|
|||||
Net cash (used in) provided by investing activities |
(24,161 | ) | 22,024 | |||||
CASH FLOWS FROM FINANCING ACTIVITIES: |
||||||||
Payment of deferred offering costs |
(280 | ) | (61 | ) | ||||
Proceeds from exercise of stock options |
15 | 98 | ||||||
Proceeds from issuance of convertible preferred stock, net of issuance costs |
13,162 | — | ||||||
|
|
|
|
|||||
Net cash provided by financing activities |
12,897 | 37 | ||||||
|
|
|
|
|||||
Net decrease in cash and cash equivalents |
(31,221 | ) | (1,841 | ) | ||||
Cash and cash equivalents, beginning of period |
56,505 | 25,284 | ||||||
|
|
|
|
|||||
Cash and cash equivalents, end of period |
$ | 25,284 | $ | 23,443 | ||||
|
|
|
|
|||||
NONCASH INVESTING AND FINANCING ACTIVITIES: |
||||||||
Deferred offering costs in other accrued liabilities |
$ | — | $ | 364 | ||||
|
|
|
|
|||||
Purchase of equipment included in accounts payable |
$ | 54 | $ | 43 | ||||
|
|
|
|
|||||
Impact of right-of-use |
$ | 1,707 | $ | — | ||||
|
|
|
|
December 31, 2020 |
||||||||||||||||
Level 1 |
Level 2 |
Level 3 |
Total |
|||||||||||||
Financial assets: |
||||||||||||||||
Money market funds |
$ | 18,201 | $ | — | $ | — | $ | 18,201 | ||||||||
U.S. treasury securities |
2,500 | — | — | 2,500 | ||||||||||||
Commercial paper |
— | 21,881 | — | 21,881 | ||||||||||||
Corporate debt securities |
— | 7,494 | — | 7,494 | ||||||||||||
Asset backed securities |
— | 3,307 | — | 3,307 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 20,701 | $ | 32,682 | $ | — | $ | 53,383 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Financial liability: |
||||||||||||||||
Preferred stock warrant liability |
$ | — | $ | — | $ | 2 | $ | 2 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | — | $ | — | $ | 2 | $ | 2 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
December 31, 2021 |
||||||||||||||||
Level 1 |
Level 2 |
Level 3 |
Total |
|||||||||||||
Financial assets: |
||||||||||||||||
Money market funds |
$ | 18,526 | $ | — | $ | — | $ | 18,526 | ||||||||
Commercial paper |
— | 5,498 | — | 5,498 | ||||||||||||
Corporate debt securities |
— | 4,512 | — | 4,512 | ||||||||||||
Government debt securities |
— | 1,503 | — | 1,503 | ||||||||||||
Asset backed securities |
— | 1,404 | — | 1,404 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 18,526 | $ | 12,917 | $ | — | $ | 31,443 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Financial liability: |
||||||||||||||||
Preferred stock warrant liability |
$ | — | $ | — | $ | 2 | $ | 2 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | — | $ | — | $ | 2 | $ | 2 | ||||||||
|
|
|
|
|
|
|
|
December 31, 2020 |
||||||||||||||||
Amortized Cost |
Unrealized |
Estimated Fair Value |
||||||||||||||
Gains |
Losses |
|||||||||||||||
Cash and cash equivalents: |
||||||||||||||||
Cash |
$ | 7,083 | $ | — | $ | — | $ | 7,083 | ||||||||
Money market funds |
18,201 | — | — | 18,201 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total cash and cash equivalents |
$ | 25,284 | $ | — | $ | — | $ | 25,284 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Marketable securities: |
||||||||||||||||
U.S. treasury securities |
$ | 2,499 | $ | 1 | $ | — | $ | 2,500 | ||||||||
Commercial paper |
21,881 | — | — | 21,881 | ||||||||||||
Corporate debt securities |
7,492 | 2 | — | 7,494 | ||||||||||||
Asset backed securities |
3,307 | — | — | 3,307 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total marketable securities |
$ | 35,179 | $ | 3 | $ | — | $ | 35,182 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
December 31, 2021 |
||||||||||||||||
Amortized Cost |
Unrealized |
Estimated Fair Value |
||||||||||||||
Gains |
Losses |
|||||||||||||||
Cash and cash equivalents: |
||||||||||||||||
Cash |
$ | 4,917 | $ | — | $ | — | $ | 4,917 | ||||||||
Money market funds |
18,526 | — | — | 18,526 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total cash and cash equivalents |
$ | 23,443 | $ | — | $ | — | $ | 23,443 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Marketable securities: |
||||||||||||||||
Commercial paper |
$ | 5,498 | $ | — | $ | — | $ | 5,498 | ||||||||
Corporate debt securities |
4,515 | — | (3 | ) | 4,512 | |||||||||||
Government debt securities |
1,503 | — | — | 1,503 | ||||||||||||
Asset backed securities |
1,405 | — | (1 | ) | 1,404 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total marketable securities |
$ | 12,921 | $ | — | $ | (4 | ) | $ | 12,917 | |||||||
|
|
|
|
|
|
|
|
December 31, |
||||||||
2020 |
2021 |
|||||||
Laboratory equipment |
$ | 909 | $ | 943 | ||||
Furniture and fixtures |
28 | 28 | ||||||
Office equipment |
30 | 25 | ||||||
Software |
12 | 12 | ||||||
|
|
|
|
|||||
Total property and equipment |
979 | 1,008 | ||||||
Less: accumulated depreciation |
(670 | ) | (763 | ) | ||||
|
|
|
|
|||||
Total property and equipment, net |
$ | 309 | $ | 245 | ||||
|
|
|
|
December 31, |
||||||||
2020 |
2021 |
|||||||
Accrued clinical trial and manufacturing costs |
$ | 4,818 | $ | 6,472 | ||||
Accrued personnel costs |
1,142 | 1,172 | ||||||
Other accrued liabilities |
637 | 844 | ||||||
|
|
|
|
|||||
Total accrued liabilities |
$ | 6,597 | $ | 8,488 | ||||
|
|
|
|
Year ending December 31, | Operating Leases |
|||
2022 |
$ | 422 | ||
2023 |
106 | |||
|
|
|||
Total undiscounted future lease payments |
528 | |||
Less: imputed interest |
(18 | ) | ||
|
|
|||
Total lease liabilities |
$ | 510 | ||
|
|
Convertible Preferred Stock |
Shares Authorized |
Shares Issued and Outstanding |
Carrying Value |
Liquidation Preference |
||||||||||||
Series A-1 |
39,196,116 | 39,196,116 | $ | 19,787 | $ | 19,990 | ||||||||||
Series A-2 |
12,652,762 | 12,625,343 | 2,525 | 2,525 | ||||||||||||
Series B |
14,218,546 | 14,218,546 | 14,895 | 15,000 | ||||||||||||
Series C |
82,503,347 | 79,090,623 | 121,500 | 122,570 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
148,570,771 | 145,130,628 | $ | 158,707 | $ | 160,085 | ||||||||||
|
|
|
|
|
|
|
|
Series A-1 convertible preferred stock outstanding, as converted |
39,196,116 | |||
Series A-2 convertible preferred stock outstanding, as converted |
12,625,343 | |||
Series B convertible preferred stock outstanding, as converted |
14,218,546 | |||
Series C convertible preferred stock outstanding, as converted |
79,090,623 | |||
Options issued and outstanding |
34,522,687 | |||
Options available for future grants |
8,671,812 | |||
Common stock warrants |
102,998 | |||
Series A-2 preferred stock warrant |
27,419 | |||
|
|
|||
Total common stock reserved for issuance |
188,455,544 | |||
|
|
Years Ended December 31, |
||||||||
2020 |
2021 |
|||||||
Research and development |
$ | 531 | $ | 292 | ||||
General and administrative |
814 | 851 | ||||||
|
|
|
|
|||||
Total stock-based compensation |
$ | 1,345 | $ | 1,143 | ||||
|
|
|
|
Years Ended December 31, |
||||||||
2020 |
2021 |
|||||||
Expected term (years) |
5.00 - 10.00 |
5.62 - 10.00 |
||||||
Expected volatility |
75% to 82% | 88% | ||||||
Risk-free interest rate |
0.27% - 1.51% |
0.60% - 1.20% |
||||||
Expected dividend |
0% | 0% |
Reprice |
||||
Expected term (years) |
4.26 - 6.47 |
|||
Expected volatility |
80% | |||
Risk-free interest rate |
0.18% - 0.34% |
|||
Expected dividend |
0% |
• | Expected volatility: Because Apexigen’s stock is not traded in an active market, Apexigen calculates volatility by using the historical volatilities of the common stock of comparable publicly traded companies. The historical volatility data was computed using the daily closing prices for the selected companies’ shares during the equivalent period of the calculated expected term of the stock-based awards. Apexigen will continue to apply this process until a sufficient amount of historical information regarding the volatility of its own stock price becomes available. |
• | Risk-free interest rate: Apexigen bases the risk-free interest rate from the U.S. Treasury yield curve in effect at the measurement date with maturities approximately equal to the expected term. |
• | Expected term: Apexigen determines the expected life of options granted using the “simplified” method. Under this approach, Apexigen presumes the expected term to be the mid-point between the |
weighted-average vesting term and the contractual term of the option. The simplified method makes the assumption that the award recipient will exercise share options evenly over the period when the share options are vested and ending on the date when the share options would expire. |
• | Expected dividend yield: Apexigen has never paid cash dividends on its common stock and does not have plans to pay cash dividends in the future. Therefore, Apexigen uses an expected dividend yield of zero. |
• | Common Stock Valuation: Given the absence of a public trading market of Apexigen’s common stock, the Board considers numerous subjective and objective factors to determine the best estimate of fair value of Apexigen’s common stock underlying the stock options granted to its employees and non-employees. In determining the grant date fair value of its common stock, Apexigen uses certain assumptions, including probability weighting events, volatility, time to liquidation, risk-free interest rate, and assumption for a discount for lack of marketability. Apexigen uses a hybrid of the Option Pricing Model (“OPM”) and the Probability-Weighted Expected Return Method (“PWERM”) for determining our enterprise value. Application of these methods involves the use of estimates, judgments, and assumptions that are complex and subjective, such as those regarding our expected future revenue, expenses, and cash flows, discount rates, market multiples, the selection of comparable companies, and the probability of future events. Following completion of the Merger, the Board intends to determine the fair value of the common stock based on the closing price of the common stock on or around the date of grant. |
Options Available to Grant |
Number of Options Outstanding |
Weighted Average Exercise Price |
Weighted Average Remaining Contractual Terms (Years) |
Aggregate Intrinsic Value |
||||||||||||||||
Outstanding at December 31, 2020 |
8,371,662 | 35,371,809 | $ | 0.27 | ||||||||||||||||
Granted |
(1,545,000 | ) | 1,545,000 | $ | 0.47 | |||||||||||||||
Exercised |
— | (548,972 | ) | $ | 0.18 | |||||||||||||||
Cancelled |
1,845,150 | (1,845,150 | ) | $ | 0.39 | |||||||||||||||
|
|
|
|
|||||||||||||||||
Outstanding at December 31, 2021 |
8,671,812 | 34,522,687 | $ | 0.28 | 5.07 | $ | 7,095 | |||||||||||||
|
|
|
|
|
|
|||||||||||||||
Vested and exercisable at December 31, 2021 |
30,442,623 | $ | 0.25 | 4.63 | $ | 7,052 | ||||||||||||||
|
|
|
|
|||||||||||||||||
Vested and expected to vest at December 31, 2021 |
34,372,687 | $ | 0.28 | 5.05 | $ | 7,095 | ||||||||||||||
|
|
|
|
Years Ended December 31, |
||||||||
2020 |
2021 |
|||||||
Federal statutory income tax rate |
21.0 | % | 21.0 | % | ||||
Permanent differences |
(0.5 | )% | (0.3 | )% | ||||
Other credit |
1.7 | % | 3.2 | % | ||||
Other |
0.6 | % | (0.3 | )% | ||||
State rate change impact |
(21.0 | )% | 0.0 | % | ||||
Change in valuation allowance |
(1.8 | )% | (23.6 | )% | ||||
|
|
|
|
|||||
0.0 | % | 0.0 | % | |||||
|
|
|
|
Years Ended December 31, |
||||||||
2020 |
2021 |
|||||||
Deferred tax assets: |
||||||||
Net operating loss carry forwards |
$ | 21,135 | $ | 27,217 | ||||
Tax credits |
3,049 | 3,964 | ||||||
Other reserves and accruals |
1,641 | 1,334 | ||||||
|
|
|
|
|||||
Gross deferred tax assets |
25,825 | 32,515 | ||||||
Deferred tax liabilities: |
||||||||
Depreciation and amortization |
(32 | ) | (24 | ) | ||||
Right-of-use |
(236 | ) | (101 | ) | ||||
|
|
|
|
|||||
Gross deferred tax liabilities |
(268 | ) | (125 | ) | ||||
Valuation allowance |
(25,557 | ) | (32,390 | ) | ||||
|
|
|
|
|||||
Net deferred tax assets |
$ | — | $ | — | ||||
|
|
|
|
Years Ended December 31, |
||||||||
2020 |
2021 |
|||||||
Gross unrecognized tax benefit at January 1 |
$ | 966 | $ | 1,181 | ||||
Additions for tax provision taken in the current year |
215 | 417 | ||||||
|
|
|
|
|||||
Gross unrecognized tax benefit at December 31 |
$ | 1,181 | $ | 1,598 | ||||
|
|
|
|
Page |
||||||
ARTICLE I |
DEFINITIONS | A-2 |
||||
Section 1.01 |
Certain Definitions | A-2 |
||||
Section 1.02 |
Further Definitions | A-10 |
||||
Section 1.03 |
Construction | A-12 |
||||
ARTICLE II |
AGREEMENT AND PLAN OF MERGER | A-12 |
||||
Section 2.01 |
The Merger | A-12 |
||||
Section 2.02 |
Effective Time; Closing | A-13 |
||||
Section 2.03 |
Effect of the Merger | A-13 |
||||
Section 2.04 |
Certificate of Incorporation; Bylaws | A-13 |
||||
Section 2.05 |
Directors and Officers | A-13 |
||||
ARTICLE III |
EFFECTS OF THE MERGER | A-14 |
||||
Section 3.01 |
Conversion of Securities | A-14 |
||||
Section 3.02 |
Exchange of Certificates | A-15 |
||||
Section 3.03 |
Stock Transfer Books | A-16 |
||||
Section 3.04 |
Payment of Expenses | A-16 |
||||
Section 3.05 |
Appraisal Rights | A-17 |
||||
Section 3.06 |
Closing Calculations | A-17 |
||||
ARTICLE IV |
REPRESENTATIONS AND WARRANTIES OF THE COMPANY | A-18 |
||||
Section 4.01 |
Organization and Qualification; Subsidiaries | A-18 |
||||
Section 4.02 |
Certificate of Incorporation and Bylaws | A-18 |
||||
Section 4.03 |
Capitalization | A-19 |
||||
Section 4.04 |
Authority Relative to this Agreement | A-20 |
||||
Section 4.05 |
No Conflict; Required Filings and Consents | A-20 |
||||
Section 4.06 |
Permits; Compliance | A-21 |
||||
Section 4.07 |
Financial Statements | A-21 |
||||
Section 4.08 |
Absence of Certain Changes or Events | A-22 |
||||
Section 4.09 |
Absence of Litigation | A-22 |
||||
Section 4.10 |
Employee Benefit Plans | A-23 |
||||
Section 4.11 |
Labor and Employment Matters | A-24 |
||||
Section 4.12 |
Real Property; Title to Assets | A-25 |
||||
Section 4.13 |
Intellectual Property | A-26 |
||||
Section 4.14 |
Taxes | A-30 |
||||
Section 4.15 |
Environmental Matters | A-32 |
Page |
||||||
Section 4.16 |
Material Contracts | A-32 |
||||
Section 4.17 |
Insurance | A-34 |
||||
Section 4.18 |
Board Approval; Vote Required | A-35 |
||||
Section 4.19 |
Certain Business Practices | A-35 |
||||
Section 4.20 |
Interested Party Transactions | A-35 |
||||
Section 4.21 |
Exchange Act | A-35 |
||||
Section 4.22 |
Top Suppliers | A-36 |
||||
Section 4.23 |
Compliance with Health Care Matters | A-36 |
||||
Section 4.24 |
Preclinical Development and Clinical Trials | A-37 |
||||
Section 4.25 |
Pharmaceutical Development and Marketing Regulatory Matters | A-37 |
||||
Section 4.26 |
Brokers | A-38 |
||||
Section 4.27 |
Exclusivity of Representations and Warranties | A-38 |
||||
ARTICLE V |
REPRESENTATIONS AND WARRANTIES OF BCAC AND MERGER SUB | A-39 |
||||
Section 5.01 |
Corporate Organization | A-39 |
||||
Section 5.02 |
Certificate of Incorporation and By Laws | A-39 |
||||
Section 5.03 |
Capitalization | A-39 |
||||
Section 5.04 |
Authority Relative to This Agreement | A-40 |
||||
Section 5.05 |
No Conflict; Required Filings and Consents | A-40 |
||||
Section 5.06 |
Compliance | A-41 |
||||
Section 5.07 |
SEC Filings; Financial Statements; Sarbanes-Oxley | A-41 |
||||
Section 5.08 |
Absence of Certain Changes or Events | A-43 |
||||
Section 5.09 |
Absence of Litigation | A-43 |
||||
Section 5.10 |
Board Approval; Vote Required | A-43 |
||||
Section 5.11 |
No Prior Operations of Merger Sub | A-43 |
||||
Section 5.12 |
Brokers | A-43 |
||||
Section 5.13 |
BCAC Trust Fund | A-44 |
||||
Section 5.14 |
Employees | A-44 |
||||
Section 5.15 |
Taxes | A-45 |
||||
Section 5.16 |
Listing | A-46 |
||||
Section 5.17 |
Private Placements | A-46 |
||||
Section 5.18 |
BCAC’s and Merger Sub’s Investigation and Reliance | A-46 |
||||
ARTICLE VI |
CONDUCT OF BUSINESS PENDING THE MERGER | A-47 |
||||
Section 6.01 |
Conduct of Business by the Company Pending the Merger | A-47 |
||||
Section 6.02 |
Conduct of Business by BCAC and Merger Sub Pending the Merger | A-49 |
Page |
||||||
Section 6.03 |
Claims Against Trust Account | A-50 |
||||
ARTICLE VII |
ADDITIONAL AGREEMENTS | A-50 |
||||
Section 7.01 |
Proxy Statement; Registration Statement | A-50 |
||||
Section 7.02 |
BCAC Stockholders’ Meetings; and Merger Sub Stockholder’s Approval | A-52 |
||||
Section 7.03 |
Company Stockholders’ Written Consent | A-53 |
||||
Section 7.04 |
Access to Information; Confidentiality | A-53 |
||||
Section 7.05 |
Exclusivity | A-53 |
||||
Section 7.06 |
Employee Benefits Matters | A-54 |
||||
Section 7.07 |
Directors’ and Officers’ Indemnification | A-56 |
||||
Section 7.08 |
Notification of Certain Matters | A-57 |
||||
Section 7.09 |
Further Action; Reasonable Best Efforts | A-57 |
||||
Section 7.10 |
Public Announcements | A-58 |
||||
Section 7.11 |
Tax Matters | A-58 |
||||
Section 7.12 |
Stock Exchange Listing | A-58 |
||||
Section 7.13 |
Antitrust | A-58 |
||||
Section 7.14 |
PCAOB Financial Statements | A-59 |
||||
Section 7.15 |
Trust Account | A-59 |
||||
Section 7.16 |
Section 16 Matters | A-60 |
||||
Section 7.17 |
Governance Matters | A-60 |
||||
Section 7.18 |
Extension | A-60 |
||||
Section 7.19 |
BCAC Public Filings | A-60 |
||||
ARTICLE VIII |
CONDITIONS TO THE MERGER | A-60 |
||||
Section 8.01 |
Conditions to the Obligations of Each Party | A-60 |
||||
Section 8.02 |
Conditions to the Obligations of BCAC and Merger Sub | A-61 |
||||
Section 8.03 |
Conditions to the Obligations of the Company | A-62 |
||||
ARTICLE IX |
TERMINATION, AMENDMENT AND WAIVER | A-63 |
||||
Section 9.01 |
Termination | A-63 |
||||
Section 9.02 |
Effect of Termination | A-64 |
||||
Section 9.03 |
Expenses | A-64 |
||||
Section 9.04 |
Amendment | A-64 |
||||
Section 9.05 |
Waiver | A-64 |
||||
ARTICLE X |
GENERAL PROVISIONS | A-64 |
||||
Section 10.01 |
Notices | A-64 |
||||
Section 10.02 |
Nonsurvival of Representations, Warranties and Covenants | A-65 |
Page |
||||||
Section 10.03 |
Severability | A-66 |
||||
Section 10.04 |
Entire Agreement; Assignment | A-66 |
||||
Section 10.05 |
Parties in Interest | A-66 |
||||
Section 10.06 |
Governing Law | A-66 |
||||
Section 10.07 |
Waiver of Jury Trial | A-66 |
||||
Section 10.08 |
Headings | A-67 |
||||
Section 10.09 |
Counterparts | A-67 |
||||
Section 10.10 |
Specific Performance | A-67 |
EXHIBIT A | Registration Rights and Lock-Up Agreement | |
EXHIBIT B | Surviving Corporation Amended and Restated Certificate of Incorporation | |
EXHIBIT C | BCAC Second Amended and Restated Certificate of Incorporation | |
EXHIBIT D | Equity Plan | |
EXHIBIT E | ESPP | |
SCHEDULE 1 | Company Knowledge Parties | |
SCHEDULE 2 | Key Company Stockholders |
Defined Term |
Location of Definition | |
Action | § 4.09 | |
Agreement | Preamble | |
Alternative Transaction | § 7.05(a) | |
Antitrust Laws | § 7.13(a) | |
BCAC | Preamble | |
BCAC Board | Recitals | |
BCAC Closing Statement | § 3.06(b) | |
BCAC Preferred Stock | § 5.03(a) | |
BCAC Proposals | § 7.01(a) | |
BCAC SEC Reports | § 5.07(a) | |
BCAC Stockholders’ Meeting | § 7.01(a) | |
Blue Sky Laws | § 4.05(b) | |
Business Combination Proposal | § 7.05(b) | |
Certificate of Merger | § 2.02(a) | |
Certificates | § 3.02(b) | |
Claims | § 6.03 | |
Closing | § 2.02(b) | |
Closing Date | § 2.02(b) |
Defined Term |
Location of Definition | |
CMS | § 4.25(a) | |
Code | § 3.02(b) | |
Company | Preamble | |
Company Board | Recitals | |
Company Disclosure Schedule | Article IV | |
Company Permits | § 4.06 | |
Company Share Awards | § 4.03(a) | |
Company Stockholder Approval | § 4.18 | |
Confidentiality Agreement | § 7.04(b) | |
Continuing Employees | § 7.06(c) | |
Contribution | § 4.13(e) | |
Data Security Requirements | § 4.13(g) | |
DGCL | Recitals | |
Dissenting Shares | § 3.05(a) | |
Effective Time | § 2.02(a) | |
Environmental Permits | § 4.15 | |
Equity Plan | § 7.06(a) | |
Equity Purchase Agreement | Recitals | |
ERISA | § 4.10(a) | |
ERISA Affiliate | § 4.10(b) | |
Estimated Closing Statement | § 3.06(a) | |
Exchange Act | § 4.21 | |
Exchange Agent | § 3.02(a) | |
Exchange Fund | § 3.02(a) | |
Exchanged Option | § 3.01(d) | |
Financial Statements | § 4.07(b) | |
GAAP | § 4.07(a) | |
Goods | § 4.22(a) | |
Initial Post-Closing BCAC Directors | § 2.05(b) | |
Insurance Policies | § 4.17(a) | |
IRS | § 4.10(a) | |
Intended Tax Treatment | Recitals | |
Ladenburg | § 5.12 | |
Lease | § 4.12(b) | |
Lease Documents | § 4.12(b) | |
Letter of Transmittal | § 3.02(b) | |
Lincoln Park | Recitals | |
Material Contracts | § 4.16(a) | |
Merger | Recitals | |
Merger Sub | Preamble | |
Merger Sub Board | Recitals | |
Merger Sub Common Stock | § 5.03(b) | |
OIG | § 4.25(a) | |
Outside Date | § 9.01(b) | |
Outstanding BCAC Transaction Expenses | § 3.04(b) | |
Outstanding Company Transaction Expenses | § 3.04(a) | |
PCAOB Financial Statements | § 7.14 | |
Per Share Merger Consideration | § 3.01(a) | |
Plans | § 4.10(a) | |
Prior Financial Statements | § 4.07(a) | |
Private Placements | Recitals |
Defined Term |
Location of Definition | |
Proxy Statement | § 7.01(a) | |
Registration Rights and Lock-Up Agreement |
Recitals | |
Registration Statement | § 7.01(a) | |
Remedies Exceptions | § 4.04 | |
Representatives | § 7.04(a) | |
SEC | § 5.07(a) | |
Securities Act | § 5.07(a) | |
Stockholder Support Agreement | Recitals | |
Subscription Agreement | Recitals | |
Surviving Corporation | § 2.01 | |
Tax | § 4.14(v) | |
Tax Return | § 4.14(v) | |
Terminating BCAC Breach | § 9.01(g) | |
Terminating Company Breach | § 9.01(f) | |
Top Supplier | § 4.22(a) | |
Transfer Agent Cancellation | § 3.02(b) | |
Trust Account | § 5.13 | |
Trust Agreement | § 5.13 | |
Trust Fund | § 5.13 | |
Trustee | § 5.13 | |
Unaudited Balance Sheets | § 4.07(b) | |
WARN Act | § 4.11(c) | |
Written Consent | § 7.03 |
BROOKLINE CAPITAL ACQUISITION CORP. | ||
By: | /s/ Dr. Samuel P. Wertheimer | |
Name: Dr. Samuel P. Wertheimer | ||
Title: Chief Executive Officer and Chairman | ||
PROJECT BAROLO MERGER SUB, INC. | ||
By: | /s/ Dr. Samuel P. Wertheimer | |
Name: Dr. Samuel P. Wertheimer | ||
Title: President and Treasurer | ||
APEXIGEN, INC. | ||
By: | /s/ Xiadong Yang | |
Name: Xiaodong Yang | ||
Title: Chief Executive Officer |
[ Name |
[ Title |
• | to attract and retain highly talented personnel, |
• | to provide additional incentive to Employees, Directors and Consultants, and |
• | to promote the success of the Company’s business. |
1 |
NTD |
2 |
NTD |
1 |
NTD: |
2 |
NTD: |
_____ Original Application | Offering Date: _________________ |
Employee’s Social | ||
Security Number | ||
(for U.S.-based employees): |
| |
Employee’s Address: | | |
| ||
|
Dated: |
| |
Signature of Employee |
Name and Address of Participant: |
|
|
|
Signature: |
|
Date: |
1. | Xiaodong Yang, MD, PhD |
2. | Frank Hsu, MD |
3. | Linda Rubinstein |
4. | Amy Wong |
|
[ Name |
[ Title |
BCAC: BROOKLINE CAPITAL ACQUISTION CORP. |
/s/ Dr. Samuel P. Wertheimer |
Name: Dr. Samuel P. Wertheimer |
Title: Chief Executive Officer and Chairman |
SPONSOR: |
BROOKLINE CAPITAL HOLDINGS, LLC |
/s/ William B. Buchanan, Jr. |
Name: William B. Buchanan, Jr. |
Title: Managing Partner |
THE COMPANY: APEXIGEN, INC. |
/s/ Xiaodong Yang |
Name: Xiaodong Yang |
Title: Chief Executive Officer |
BROOKLINE CAPITAL ACQUISTION CORP. | ||
By |
/s/ Dr. Samuel P. Wertheimer | |
Name: |
Dr. Samuel P. Wertheimer | |
Title: |
Chief Executive Officer and Chairman |
[HOLDER] | ||
By: |
||
Name: |
Stockholder Name |
Common Shares |
Series A-1 PreferredShares |
Series A-2 Preferred Shares |
Series B Preferred Shares |
Series C Preferred Shares |
STOCKHOLDER: |
|
Print name of Stockholder |
|
Signature |
|
Date of signature |
|
Name of signer (for entities) |
|
Title of signer (for entities) |
COMPANY | ||
BROOKLINE CAPITAL ACQUISITION CORP. | ||
By: | /s/ Dr. Samuel P. Westheimer | |
Name: Dr. Samuel P. Westheimer | ||
Title: Chief Executive Officer and Chairman |
Address for Notice: | ||
280 Park Avenue | ||
Suite 43W | ||
New York, NY 10017 | ||
Telephone No.: | (646) 603-6716 | |
Facsimile No.: | *** | |
Email Address: | *** |
HOLDER | ||
By: | | |
Address for Notice: |
| ||
| ||
| ||
Telephone No.: | | |
Facsimile No.: | | |
Email Address: | |
Name of Holder |
Number of Shares |
Lock-Up Period |
9. | Miscellaneous . |
BROOKLINE CAPITAL ACQUISITION CORP. | ||
By: | | |
Name: Dr. Samuel Wertheimer | ||
Title: Chief Executive Officer and Chairman | ||
Address for Notices: | ||
280 Park Avenue, Suite 43W | ||
New York, NY 10017 Email:*** |
SUBSCRIBER: Signature of Subscriber: By: ______________________________ Name: Title: |
||
Date: __________________________ | ||
Name of Subscriber: _______________________________ (Please print. Please indicate name and capacity of person signing above) |
||
_________________________________ Name in which shares are to be registered (if different): |
||
Email Address: _______________________ | ||
Subscriber’s EIN: __________________________ |
||
Jurisdiction of residency: __________________________ | ||
Number of Subscribed Shares subscribed for: | ____________ | |
Number of Warrants subscribed for: |
____________ | |
Price Per Subscribed Share: | $10.00 | |
Aggregate Purchase Price: | $ ____________ |
A. | QUALIFIED INSTITUTIONAL BUYER STATUS (Please check the box, if applicable) |
☐ | Subscriber is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act). |
B. | FINRA INSTITUTIONAL INVESTOR STATUS (Please check the box) |
☐ | Subscriber is a “institutional investor” (as defined in FINRA Rule 2111). |
C. | ACCREDITED INVESTOR STATUS (Please check the box) |
☐ | Subscriber is an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) and has marked and initialed the appropriate box below indicating the provision under which it qualifies as an “accredited investor.” |
D. | AFFILIATE STATUS (Please check the applicable box) |
☐ | is: |
☐ | is not: |
☐ | Any bank, registered broker or dealer, insurance company, registered investment company, business development company, or small business investment company; |
☐ | Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000; |
☐ | Any employee benefit plan, within the meaning of the Employee Retirement Income Security Act of 1974, if a bank, insurance company, or registered investment advisor makes the investment decisions, or if the plan has total assets in excess of $5,000,000; |
☐ | Any corporation, similar business trust, partnership or any organization described in Section 501(c)(3) of the Internal Revenue Code, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; |
☐ | Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer; |
☐ | Any natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of his purchase exceeds $1,000,000. For purposes of calculating a natural person’s net worth: (a) the |
person’s primary residence must not be included as an asset; (b) indebtedness secured by the person’s primary residence up to the estimated fair market value of the primary residence must not be included as a liability (except that if the amount of such indebtedness outstanding at the time of calculation exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess must be included as a liability); and (c) indebtedness that is secured by the person’s primary residence in excess of the estimated fair market value of the residence must be included as a liability; |
☐ | Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year. |
☐ | Any trust with assets in excess of $5,000,000, not formed to acquire the securities offered, whose purchase is directed by a sophisticated person; or |
☐ | Any entity in which all of the equity owners are accredited investors meeting one or more of the above tests. |
E. | FINRA INSTITUTIONAL ACCOUNT STATUS |
☐ | Subscriber is an “institutional account” under FINRA Rule 4512(c). |
☐ | Subscriber is not an “institutional account” under FINRA Rule 4512(c). |
SUBSCRIBER: |
Print Name: |
By: |
Name: |
Title: |
1. |
CERTAIN DEFINITIONS. |
2. |
PURCHASE OF COMMON STOCK. |
3. |
INVESTOR’S REPRESENTATIONS AND WARRANTIES. |
4. |
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND APEXIGEN. |
5. |
COVENANTS. |
6. |
TRANSFER AGENT INSTRUCTIONS. |
7. |
CONDITIONS TO THE COMPANY’S RIGHT TO COMMENCE SALES OF SHARES OF COMMON STOCK. |
8. |
CONDITIONS TO THE INVESTOR’S OBLIGATION TO PURCHASE SHARES OF COMMON STOCK. |
9. |
INDEMNIFICATION. |
10. |
EVENTS OF DEFAULT. |
11. |
TERMINATION |
12. |
MISCELLANEOUS. |
Brookline Capital Acquisition Corp. | ||
280 Park Avenue, Suite 43W | ||
New York, NY 10017 | ||
Phone: | 646-603-6716 | |
Attention: | Samuel P. Wertheimer, Chairman and CEO | |
Email: | *** |
DLA Piper LLP (US) | ||
1251 Avenue of the Americas | ||
New York, NY 10020 | ||
Attention: James Kelly; Peter Ekberg | ||
Attention: | James Kelly; Peter Ekberg | |
Email: | james.kelly@us.dlapiper.com ; peter.ekberg@us.dlapiper.com |
DLA Piper LLP (US) 555 Mission Street |
Suite 2400 |
San Francisco, CA 94105 |
Attention: Jeffrey Selman |
Email: jeffrey.selman@us.dlapiper.com |
Apexigen, Inc. | ||
75 Shoreway Rd., Suite C | ||
San Carlos, CA 94070 | ||
Phone: | *** | |
Attention: | Xiaodong Yang, MD, PhD, President and CEO; Francis Sarena, Chief Operating Officer | |
Email: | *** |
Wilson Sonsini 650 Mill Page Road | ||
Palo Alto, CA 94304 | ||
Phone: | 650-493-9300 | |
Attention: | Kenneth A. Clark; Michael E. Coke; Lance E. Brady | |
Email: | kclark@wsgr.com ; mcoke@wsgr.com ; lbrady@wsgr.com |
Lincoln Park Capital Fund, LLC | ||
440 North Wells, Suite 410 | ||
Chicago, IL 60654 | ||
Telephone: | 312.822.9300 | |
Facsimile: | 312.822.9301 | |
E-mail: |
*** | |
Attention: | Josh Scheinfeld/Jonathan Cope |
K&L Gates, LLP 200 S. Biscayne Blvd., Ste. 3900 | ||
Miami, Florida 33131 | ||
Telephone: | 305.539.3306 | |
Facsimile: | 305.358.7095 | |
E-mail: |
clayton.parker@klgates.com | |
Attention: | Clayton E. Parker, Esq. |
Continental Stock Transfer & Trust | ||
1 State Street 30th Floor | ||
New York, NY 10004-1561 | ||
Attention: | Douglas Reed | |
E-mail: |
*** |
THE COMPANY: | ||
BROOKLINE CAPITAL ACQUISITION CORP. | ||
By: | /s/ Dr. Samuel P. Wertheimer | |
Name: | Dr. Samuel P. Wertheimer | |
Title: | Chief Executive Officer and Chairman | |
APEXIGEN: | ||
APEXIGEN, INC. | ||
By: | /s/ Xiaodong Yang | |
Name: | Xiaodong Yang | |
Title: | Chief Executive Officer | |
THE INVESTOR: | ||
LINCOLN PARK CAPITAL FUND, LLC | ||
BY: LINCOLN PARK CAPITAL, LLC | ||
BY: ROCKLEDGE CAPITAL CORPORATION | ||
By: | /s/ Josh Scheinfeld | |
Name: | Josh Scheinfeld | |
Title: | President |
Exhibit A | Form of Officer’s Certificate | |
Exhibit B | Form of Secretary’s Certificate | |
Exhibit C | Form of Resolutions of the Board of Directors of the Company |
Name: |
Title: |
Secretary |
|
Secretary |
By: | |
By: | | |||||
Date: | Date: | |||||||
By: | |
By: | | |||||
Date: | Date: | |||||||
By: | |
By: | | |||||
Date: | Date: | |||||||
By: | |
|||||||
Date: |
Brookline Capital Acquisition Corp. | ||
280 Park Avenue, Suite 43W | ||
New York, NY 10017 | ||
Phone: | 646-603-6716 | |
Attention: | Samuel P. Wertheimer, Chairman and CEO | |
Email: | *** |
DLA Piper LLP (US) | ||
1251 Avenue of the Americas | ||
New York, NY 10020 | ||
Attention: | James Kelly; Peter Ekberg |
Email: | james.kelly@us.dlapiper.com; peter.ekberg@us.dlapiper.com |
and | ||
DLA Piper LLP (US) | ||
555 Mission Street | ||
Suite 2400 | ||
San Francisco, CA 94105 | ||
Attention: | Jeffrey Selman | |
Email: | jeffrey.selman@us.dlapiper.com |
Apexigen, Inc. | ||
75 Shoreway Rd., Suite C | ||
San Carlos, CA 94070 | ||
Phone: | 650-931-6236 | |
Attention: | Xiaodong Yang, MD, PhD, President and CEO; Francis Sarena, Chief Operating Officer | |
Email: | *** |
Wilson Sonsini 650 Mill Page Road | ||
Palo Alto, CA 94304 | ||
Phone: | 650-493-9300 | |
Attention: | Kenneth A. Clark; Michael E. Coke; Lance E. Brady | |
Email: | kclark@wsgr.com; mcoke@wsgr.com; lbrady@wsgr.com |
Lincoln Park Capital Fund, LLC | ||
440 North Wells, Suite 410 | ||
Chicago, IL 60654 | ||
Telephone: | 312.822.9300 | |
Facsimile: | 312.822.9301 | |
E-mail: |
*** | |
Attention: | Josh Scheinfeld/Jonathan Cope |
K&L Gates, LLP 200 S. Biscayne Blvd., Ste. 3900 | ||
Miami, Florida 33131 | ||
Telephone: | 305.539.3306 | |
Facsimile: | 305.358.7095 | |
E-mail: |
clayton.parker@klgates.com | |
Attention: | Clayton E. Parker, Esq. |
Continental Stock Transfer & Trust | ||
1 State Street 30th Floor | ||
New York, NY 10004-1561 | ||
Attention: | Douglas Reed | |
E-mail: |
*** |
THE COMPANY: | ||
BROOKLINE CAPITAL ACQUISITION CORP. | ||
By: | /s/ Dr. Samuel P. Wertheimer | |
Name: | Dr. Samuel P. Wertheimer | |
Title: | Chief Executive Officer and Chairman | |
APEXIGEN: | ||
APEXIGEN, INC. | ||
By: | /s/ Xiaodong Yang | |
Name: | Xiaodong Yang | |
Title: | Chief Executive Officer |
THE INVESTOR: | ||
LINCOLN PARK CAPITAL FUND, LLC | ||
BY: |
LINCOLN PARK CAPITAL, LLC | |
BY: |
ROCKLEDGE CAPITAL CORPORATION | |
By: | /s/ Josh Scheinfeld | |
Name: | Josh Scheinfeld | |
Title: | President |
Very truly yours, | ||
[Company Counsel] | ||
By: | |
cc: | Lincoln Park Capital Fund, LLC |
• | to attract and retain highly talented personnel, |
• | to provide additional incentive to Employees, Directors and Consultants, and |
• | to promote the success of the Company’s business. |
1 |
NTD |
2 |
NTD |
1 |
NTD: |
2 |
NTD: |
_____ Original Application | Offering Date: |
Employee’s Social | ||
Security Number | ||
(for U.S.-based employees): |
| |
Employee’s Address: | | |
| ||
|
Dated: |
| |
Signature of Employee |
Name and Address of Participant: |
|
|
|
Signature: |
|
Date: |
Page |
||||||
ARTICLE I - CORPORATE OFFICES |
1 | |||||
1.1 |
REGISTEREDOFFICE |
1 | ||||
1.2 |
OTHEROFFICES |
1 | ||||
ARTICLE II - MEETINGS OF STOCKHOLDERS |
1 | |||||
2.1 |
PLACEOF MEETINGS |
1 | ||||
2.2 |
ANNUALMEETING |
1 | ||||
2.3 |
SPECIALMEETING |
1 | ||||
2.4 |
ADVANCENOTICE PROCEDURES |
2 | ||||
2.5 |
NOTICEOF STOCKHOLDERS’ MEETINGS |
6 | ||||
2.6 |
QUORUM |
6 | ||||
2.7 |
ADJOURNEDMEETING; NOTICE |
7 | ||||
2.8 |
CONDUCTOF BUSINESS |
7 | ||||
2.9 |
VOTING |
7 | ||||
2.10 |
STOCKHOLDERACTION BY WRITTEN CONSENT WITHOUT A MEETING |
8 | ||||
2.11 |
RECORDDATES |
8 | ||||
2.12 |
PROXIES |
9 | ||||
2.13 |
LISTOF STOCKHOLDERS ENTITLED TO VOTE |
9 | ||||
2.14 |
INSPECTORSOF ELECTION |
9 | ||||
ARTICLE III - DIRECTORS |
10 | |||||
3.1 |
POWERS |
10 | ||||
3.2 |
NUMBEROF DIRECTORS |
10 | ||||
3.3 |
ELECTION,QUALIFICATION AND TERM OF OFFICE OF DIRECTORS |
10 | ||||
3.4 |
RESIGNATIONAND VACANCIES |
11 | ||||
3.5 |
PLACEOF MEETINGS; MEETINGS BY TELEPHONE |
12 | ||||
3.6 |
REGULARMEETINGS |
12 | ||||
3.7 |
SPECIALMEETINGS; NOTICE |
12 | ||||
3.8 |
QUORUM;VOTING |
13 | ||||
3.9 |
BOARDACTION BY WRITTEN CONSENT WITHOUT A MEETING |
13 | ||||
3.10 |
FEESAND COMPENSATION OF DIRECTORS |
13 | ||||
3.11 |
REMOVALOF DIRECTORS |
14 | ||||
ARTICLE IV - COMMITTEES |
14 | |||||
4.1 |
COMMITTEESOF DIRECTORS |
14 | ||||
4.2 |
COMMITTEEMINUTES |
14 | ||||
4.3 |
MEETINGSAND ACTION OF COMMITTEES |
14 | ||||
4.4 |
SUBCOMMITTEES |
15 | ||||
ARTICLE V - OFFICERS |
16 | |||||
5.1 |
OFFICERS |
16 | ||||
5.2 |
APPOINTMENTOF OFFICERS |
16 | ||||
5.3 |
SUBORDINATEOFFICERS |
16 | ||||
5.4 |
REMOVALAND RESIGNATION OF OFFICERS |
16 |
Page |
||||||
5.5 |
VACANCIESIN OFFICES |
16 | ||||
5.6 |
REPRESENTATIONOF SHARES OF OTHER CORPORATIONS |
17 | ||||
5.7 |
AUTHORITYAND DUTIES OF OFFICERS |
17 | ||||
ARTICLE VI - STOCK |
17 | |||||
6.1 |
STOCKCERTIFICATES; PARTLY PAID SHARES |
17 | ||||
6.2 |
SPECIALDESIGNATION ON CERTIFICATES |
18 | ||||
6.3 |
LOSTCERTIFICATES |
18 | ||||
6.4 |
DIVIDENDS |
18 | ||||
6.5 |
TRANSFEROF STOCK |
19 | ||||
6.6 |
STOCKTRANSFER AGREEMENTS |
19 | ||||
6.7 |
REGISTEREDSTOCKHOLDERS |
19 | ||||
ARTICLE VII - MANNER OF GIVING NOTICE AND WAIVER |
19 | |||||
7.1 |
NOTICEOF STOCKHOLDERS’ MEETINGS |
19 | ||||
7.2 |
NOTICEBY ELECTRONIC TRANSMISSION |
20 | ||||
7.3 |
NOTICETO STOCKHOLDERS SHARING AN ADDRESS |
21 | ||||
7.4 |
NOTICETO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL |
21 | ||||
7.5 |
WAIVEROF NOTICE |
21 | ||||
ARTICLE VIII - INDEMNIFICATION |
21 | |||||
8.1 |
INDEMNIFICATIONOF DIRECTORS AND OFFICERS IN THIRD PARTY PROCEEDINGS |
21 | ||||
8.2 |
INDEMNIFICATIONOF DIRECTORS AND OFFICERS IN ACTIONS BY OR IN THE RIGHT OF THE CORPORATION |
22 | ||||
8.3 |
SUCCESSFULDEFENSE |
22 | ||||
8.4 |
INDEMNIFICATIONOF OTHERS |
22 | ||||
8.5 |
ADVANCEDPAYMENT OF EXPENSES |
23 | ||||
8.6 |
LIMITATIONON INDEMNIFICATION |
23 | ||||
8.7 |
DETERMINATION;CLAIM |
24 | ||||
8.8 |
NON-EXCLUSIVITYOF RIGHTS |
24 | ||||
8.9 |
INSURANCE |
24 | ||||
8.10 |
SURVIVAL |
24 | ||||
8.11 |
EFFECTOF REPEAL OR MODIFICATION |
25 | ||||
8.12 |
CERTAINDEFINITIONS |
25 | ||||
ARTICLE IX - GENERAL MATTERS |
25 | |||||
9.1 |
EXECUTIONOF CORPORATE CONTRACTS AND INSTRUMENTS |
25 | ||||
9.2 |
FISCALYEAR |
26 | ||||
9.3 |
SEAL |
26 | ||||
9.4 |
CONSTRUCTION;DEFINITIONS |
26 |
Page |
||||
ARTICLE X - AMENDMENTS |
26 | |||
ARTICLE XI - EXCLUSIVE FORUM |
26 |
(i) | if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; |
(ii) | if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; |
(iii) | if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and |
(iv) | if by any other form of electronic transmission, when directed to the stockholder. |
|
Secretary |
Exhibit |
Description | |
2.1**† | Business Combination Agreement, dated as of March 17, 2022 (included as Annex A to this proxy statement/prospectus. | |
3.1** | Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to BCAC’s Current Report on Form 8-K filed with the SEC on February 2, 2021). | |
3.2** | Bylaws (incorporated by reference to Exhibit 3.3 to BCAC’s Registration Statement on Form S-1 filed with the SEC on August 14, 2020). | |
3.3** | Form of the Amended and Restated Certificate of Incorporation of the Combined Company (included as Annex B to this proxy statement/prospectus). | |
3.4 | Form of the Amended and Restated Bylaws of the Combined Company (included as Annex J to this proxy statement/prospectus) | |
4.1** | Specimen Unit Certificate (incorporated by reference to Exhibit 4.1 to Amendment No. 3 to BCAC’s Registration Statement on Form S-1 filed with the SEC on January 7, 2021). | |
4.2** | Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.2 to Amendment No. 3 to BCAC’s Registration Statement on Form S-1 filed with the SEC on August 24, 2020). | |
4.3** | Specimen Warrant Certificate (incorporated by reference to Exhibit 4.3 to Amendment No. 3 to BCAC’s Registration Statement on Form S-1 filed with the SEC on August 24, 2020). | |
4.4** | Warrant Agreement, dated January 28, 2021, by and between BCAC’s and Continental Stock Transfer & Trust Company, LLC (incorporated by reference to Exhibit 4.1 to BCAC’s Current Report on Form 8-K filed with the SEC on February 2, 2021). | |
5.1* | Opinion of DLA Piper LLP (US) as to the validity of the securities being registered. | |
10.1** | ||
10.2** | Stockholder Support Agreement, dated March 17, 2022, by and among BCAC, Apexigen, and certain stockholders of Apexigen (included as Annex D to this proxy statement/prospectus). | |
10.3** | Registration Rights and Lock-Up Agreement, dated March 17, 2022, by and among BCAC and certain equityholders named therein (included as Annex E to this proxy statement/prospectus). | |
10.4** | Form of PIPE Subscription Agreement (included as Annex F to this proxy statement/prospectus). | |
10.5** | Lincoln Park Purchase Agreement (included as Annex G-1 to this proxy statement/prospectus). | |
10.6** | Registration Rights Agreement (included as Annex G-2 to this proxy statement/prospectus). | |
10.7#** | Apexigen, Inc. 2022 Equity Incentive Plan (included as Annex H to this proxy statement/prospectus). | |
10.8#** | Apexigen, Inc. 2022 Employee Stock Purchase Plan (included as Annex I to this proxy statement/prospectus). | |
10.9# | Form of Apexigen, Inc. Indemnification Agreement. | |
10.10#* | Confirmatory Employment Letter between Apexigen, Inc. and Xiaodong Yang. | |
10.11#* | Confirmatory Employment Letter between Apexigen, Inc. and Amy Wong | |
10.12#* | Confirmatory Employment Letter between Apexigen, Inc. and Frank Hsu. |
10.13#* | Confirmatory Employment Letter between Apexigen, Inc. and Francis Sarena. | |
10.14#* | Form of Change in Control and Severance Agreement. | |
23.1 | Consent of Marcum LLP. | |
23.2 | Consent of Moss Adams LLP. | |
23.3* | Consent of DLA Piper LLP (US) (included in Exhibit 5.1 hereto). | |
24.1** | Power of Attorney (included on signature page to the initial filing of this Registration Statement). | |
99.1* | Form of Proxy Card. | |
99.2** | Consent of Xiaodong Yang, M.D., Ph.D. to be named as a director nominee of the Combined Company. | |
99.3** | Consent of Herb Cross to be named as a director nominee of the Combined Company. | |
99.4** | Consent of Jakob Dupont, M.D. to be named as a director nominee of the Combined Company. | |
99.5** | Consent of Gordon Ringold to be named as a director nominee of the Combined Company. | |
99.6** | Consent of Scott Smith to be named as a director nominee of the Combined Company. | |
99.7** | Consent of Dan Zabrowski, Ph.D. to be named as a director nominee of the Combined Company. | |
101.INS | XBRL Instance Document—the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document. | |
101.SCH | Inline XBRL Taxonomy Extension Schema Document | |
101.CAL | Inline XBRL Taxonomy Extension Calculation Linkbase Document | |
101.DEF | Inline XBRL Taxonomy Extension Definition Linkbase Document | |
101.LAB | Inline XBRL Taxonomy Extension Label Linkbase Document | |
101.PRE | Inline XBRL Taxonomy Extension Presentation Linkbase Document | |
104 | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) | |
107** | Filing Fee Table |
* | To be filed by amendment. |
** | Previously filed. |
† | Certain portions of this exhibit (indicated by “[***]”) have been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it is not material and is the type of information that the registrant treats as private or confidential. |
# | Indicate management contract or compensatory plan or arrangement. |
A. | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by section 10(a)(3) of the Securities Act; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. |
Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement. |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
B. | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
C. | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
D. | That, for the purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
E. | That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
F. | That prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form. |
G. | That every prospectus (i) that is filed pursuant to paragraph (F) immediately preceding, or (ii) that purports to meet the requirements of section 10(a)(3) of the Securities Act and is used in connection |
with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
H. | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
I. | To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. |
Brookline Capital Acquisitions Corp. | ||
By: | /s/ Dr. Samuel P. Wertheimer | |
Name: | Dr. Samuel P. Wertheimer | |
Title: |
Chairman of the Board and Chief Executive Officer |
Signature |
Title |
Date | ||
/s/ Dr. Samuel P. Wertheimer Dr. Samuel P. Wertheimer |
Chief Executive Officer and Chairman (Principal Executive Officer) |
May 23, 2022 | ||
/s/ Patrick A. Sturgeon Patrick A. Sturgeon |
Chief Financial Officer (Principal Financial and Accounting Officer) |
May 23, 2022 | ||
* Scott A. Katzmann |
President and Director | May 23, 2022 | ||
* James N. Hauslein |
Director | May 23, 2022 | ||
* Elgar Peerschke |
Director | May 23, 2022 | ||
* Tito A. Serafini, PhD |
Director | May 23, 2022 |
*By: | /s/ Dr. Samuel P. Wertheimer | |
Dr. Samuel P. Wertheimer Attorney-in-fact |
Exhibit 10.9
Indemnification Agreement
This Indemnification Agreement (this Agreement) is dated as of [●], 2022, and is between Apexigen, Inc., a Delaware corporation (the Company), and [●], an individual (Indemnitee).
Recitals
A. Indemnitees service to the Company substantially benefits the Company.
B. Individuals are reluctant to serve as directors or officers of corporations or in certain other capacities unless they are provided with adequate protection through insurance or indemnification against the risks of claims and actions against them arising out of such service.
C. Indemnitee does not regard the protection currently provided by applicable law, the Companys governing documents and any insurance as adequate under the present circumstances, and Indemnitee may not be willing to serve as a director or officer without additional protection.
D. In order to induce Indemnitee to continue to provide services to the Company, it is reasonable, prudent and necessary for the Company to contractually obligate itself to indemnify, and to advance expenses on behalf of, Indemnitee as permitted by applicable law.
E. This Agreement is a supplement to and in furtherance of the indemnification provided in the Companys certificate of incorporation and bylaws, and any resolutions adopted pursuant thereto, and this Agreement shall not be deemed a substitute therefor, nor shall this Agreement be deemed to limit, diminish or abrogate any rights of Indemnitee thereunder.
The parties therefore agree as follows:
1. Definitions.
(a) A Change in Control shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of the following events:
(i) the acquisition of the Company by another entity by means of any transaction or series of related transactions (including, without limitation, any reorganization, merger or consolidation or stock transfer, but excluding any such transaction effected primarily for the purpose of changing the domicile of the Company), unless the Companys stockholders of record immediately prior to such transaction or series of related transactions hold, immediately after such transaction or series of related transactions, at least 50% of the voting power of the surviving or acquiring entity (provided that the sale by the Company of its securities for the purposes of raising additional funds shall not constitute a Change in Control hereunder); or
(ii) the sale of all or substantially all of the assets of the Company.
(b) Corporate Status describes the status of a person who is or was a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of the Company or any other Enterprise.
(c) DGCL means the General Corporation Law of the State of Delaware.
(d) Disinterested Director means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(e) Enterprise means the Company and any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary.
(f) Expenses include all reasonable attorneys fees, retainers, court costs, transcript costs, fees and costs of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also include (i) Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond or other appeal bond or their equivalent, and (ii) for purposes of Section 12(d), Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitees rights under this Agreement or under any directors and officers liability insurance policies maintained by the Company. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(g) Independent Counsel means a law firm, or a partner or member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent (i) the Company or Indemnitee in any matter material to either such party (other than as Independent Counsel with respect to matters concerning Indemnitee under this Agreement, or other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term Independent Counsel shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitees rights under this Agreement.
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(h) Proceeding means any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative or investigative nature, including any appeal therefrom, in which Indemnitee was, is or will be involved as a party, a potential party, a non-party witness or otherwise by reason of (i) the fact that Indemnitee is or was a director or officer of the Company, (ii) any action taken by Indemnitee or any action or inaction on Indemnitees part while acting as a director or officer of the Company, or (iii) the fact that they are or was serving at the request of the Company as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of the Company or any other Enterprise, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification or advancement of expenses can be provided under this Agreement.
(i) Reference to other enterprises shall include employee benefit plans; references to fines shall include any excise taxes assessed on a person with respect to any employee benefit plan; references to serving at the request of the Company shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner they reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner not opposed to the best interests of the Company as referred to in this Agreement.
2. Indemnity in Third-Party Proceedings. The Company shall indemnify Indemnitee in accordance with the provisions of this Section 2 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 2, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on their behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe that their conduct was unlawful.
3. Indemnity in Proceedings by or in the Right of the Company. The Company shall indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be indemnified to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitees behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the Company. No indemnification for Expenses shall be made under this Section 3 in respect of any claim,
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issue or matter as to which Indemnitee shall have been adjudged by a court of competent jurisdiction to be liable to the Company, unless and only to the extent that the Delaware Court of Chancery or any court in which the Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification for such expenses as the Delaware Court of Chancery or such other court shall deem proper.
4. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. To the extent that Indemnitee is a party to or a participant in and is successful (on the merits or otherwise) in defense of any Proceeding or any claim, issue or matter therein, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitees behalf in connection therewith. To the extent permitted by applicable law, if Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, in defense of one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitees behalf in connection with (a) each successfully resolved claim, issue or matter and (b) any claim, issue or matter related to any such successfully resolved claim, issue or matter. For purposes of this section, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
5. Indemnification for Expenses of a Witness. To the extent that Indemnitee is, by reason of their Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified to the extent permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitees behalf in connection therewith.
6. Additional Indemnification.
(a) Notwithstanding any limitation in Sections 2, 3 or 4, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on their behalf in connection with the Proceeding or any claim, issue or matter therein.
(b) For purposes of Section 6(a), the meaning of the phrase to the fullest extent permitted by applicable law shall include, but not be limited to:
(i) the fullest extent permitted by the provision of the DGCL that authorizes or contemplates additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of the DGCL; and
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(ii) the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors.
7. Exclusions. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any Proceeding (or any part of any Proceeding):
(a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid;
(b) for an accounting or disgorgement of profits pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement arrangements);
(c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the Sarbanes-Oxley Act), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements);
(d) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees, agents or other indemnitees, unless (i) the Companys board of directors authorized the Proceeding (or the relevant part of the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law, (iii) otherwise authorized in Section 12(d) or (iv) otherwise required by applicable law; or
(e) if prohibited by applicable law.
8. Advances of Expenses. The Company shall advance the Expenses incurred by Indemnitee in connection with any Proceeding, and such advancement shall be made as soon as reasonably practicable, but in any event no later than 60 days, after the receipt by the Company of a written statement or statements requesting such advances from time to time (which shall include invoices received by Indemnitee in connection with such Expenses but, in the case of invoices in connection with legal services, any references to legal work performed or to expenditure made that would cause Indemnitee to waive any privilege accorded by applicable law shall not be included with the invoice). Advances shall be unsecured and interest free and made without regard to Indemnitees ability to repay such advances. Indemnitee hereby
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undertakes to repay any advance to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company. This Section 8 shall not apply to the extent advancement is prohibited by law and shall not apply to any Proceeding for which indemnity is not permitted under this Agreement, but shall apply to any Proceeding referenced in Section 7(b) or 7(c) prior to a determination that Indemnitee is not entitled to be indemnified by the Company.
9. Procedures for Notification and Defense of Claim.
(a) Indemnitee shall notify the Company in writing of any matter with respect to which Indemnitee intends to seek indemnification or advancement of Expenses as soon as reasonably practicable following the receipt by Indemnitee of notice thereof. The written notification to the Company shall include, in reasonable detail, a description of the nature of the Proceeding and the facts underlying the Proceeding. The failure by Indemnitee to notify the Company will not relieve the Company from any liability which it may have to Indemnitee hereunder or otherwise than under this Agreement, and any delay in so notifying the Company shall not constitute a waiver by Indemnitee of any rights.
(b) If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors and officers liability insurance in effect, the Company shall give prompt notice of the commencement of the Proceeding to the insurers in accordance with the procedures set forth in the applicable policies. The Company shall thereafter take all commercially-reasonable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.
(c) In the event the Company may be obligated to make any indemnity in connection with a Proceeding, the Company shall be entitled to assume the defense of such Proceeding with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the delivery to Indemnitee of written notice of its election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee for any fees or expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. Notwithstanding the Companys assumption of the defense of any such Proceeding, the Company shall be obligated to pay the fees and expenses of Indemnitees counsel to the extent (i) the employment of counsel by Indemnitee is authorized by the Company, (ii) counsel for the Company or Indemnitee shall have reasonably concluded that there is a conflict of interest between the Company and Indemnitee in the conduct of any such defense such that Indemnitee needs to be separately represented, (iii) the fees and expenses are non-duplicative and reasonably incurred in connection with Indemnitees role in the Proceeding despite the Companys assumption of the defense, (iv) the Company is not financially or legally able to perform its indemnification obligations or (v) the Company shall not have retained, or shall not continue to retain, such counsel to defend such Proceeding. The Company shall have the right to conduct such defense as it sees fit in its sole discretion. Regardless of any provision in this Agreement, Indemnitee shall have the right to employ counsel in any
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Proceeding at Indemnitees personal expense. The Company shall not be entitled, without the consent of Indemnitee, to assume the defense of any claim brought by or in the right of the Company.
(d) Indemnitee shall give the Company such information and cooperation in connection with the Proceeding as may be reasonably appropriate.
(e) The Company shall not be liable to indemnify Indemnitee for any settlement of any Proceeding (or any part thereof) without the Companys prior written consent, which shall not be unreasonably withheld.
(f) The Company shall not settle any Proceeding (or any part thereof) without Indemnitees prior written consent, which shall not be unreasonably withheld.
10. Procedures upon Application for Indemnification.
(a) To obtain indemnification, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and as is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of the Proceeding. The Company shall, as soon as reasonably practicable after receipt of such a request for indemnification, advise the board of directors that Indemnitee has requested indemnification. Any delay in providing the request will not relieve the Company from its obligations under this Agreement, except to the extent such failure is prejudicial.
(b) Upon written request by Indemnitee for indemnification pursuant to Section 10(a), a determination, if required by applicable law, with respect to Indemnitees entitlement thereto shall be made in the specific case (i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Companys board of directors, a copy of which shall be delivered to Indemnitee or (ii) if a Change in Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though less than a quorum of the Companys board of directors, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Companys board of directors, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Companys board of directors, a copy of which shall be delivered to Indemnitee or (D) if so directed by the Companys board of directors, by the stockholders of the Company. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten days after such determination. Indemnitee shall cooperate with the person, persons or entity making the determination with respect to Indemnitees entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys fees and disbursements) reasonably incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company, to the extent permitted by applicable law.
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(c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 10(b), the Independent Counsel shall be selected as provided in this Section 10(c). If a Change in Control shall not have occurred, the Independent Counsel shall be selected by the Companys board of directors, and the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Companys board of directors, in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten days after such written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of Independent Counsel as defined in Section 1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within 20 days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a) hereof and (ii) the final disposition of the Proceeding, the parties have not agreed upon an Independent Counsel, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the others selection of Independent Counsel and for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 10(b) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 12(a) of this Agreement, the Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
(d) The Company agrees to pay the reasonable fees and expenses of any Independent Counsel and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
11. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to
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indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 10(a) of this Agreement, and the Company shall, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption in connection with the making by such person, persons or entity of any determination contrary to that presumption.
(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which they reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that their conduct was unlawful.
(c) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith to the extent Indemnitee relied in good faith on (i) the records or books of account of the Enterprise, including financial statements, (ii) information supplied to Indemnitee by the officers of the Enterprise in the course of their duties, (iii) the advice of legal counsel for the Enterprise or its board of directors or counsel selected by any committee of the board of directors or (iv) information or records given or reports made to the Enterprise by an independent certified public accountant, an appraiser, investment banker or other expert selected with reasonable care by the Enterprise or its board of directors or any committee of the board of directors. The provisions of this Section 11(c) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
(d) Neither the knowledge, actions nor failure to act of any other director, officer, agent or employee of the Enterprise shall be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
12. Remedies of Indemnitee.
(a) Subject to Section 12(e), in the event that (i) a determination is made pursuant to Section 10 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8 or 12(d) of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 10 of this Agreement within 90 days after the later of the receipt by the Company of the request for indemnification or the final disposition of the Proceeding, (iv) payment of indemnification pursuant to this Agreement is not made (A) within ten days after a determination has been made that Indemnitee is entitled to indemnification or (B) with respect to indemnification pursuant to Sections 4, 5 and 12(d) of this Agreement, within 30 days after receipt by the Company of a written request therefor, or (v) the Company or any other person or entity takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to
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deny, or to recover from, Indemnitee the benefits provided or intended to be provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by a court of competent jurisdiction of their entitlement to such indemnification or advancement of Expenses. Alternatively, Indemnitee, at their option, may seek an award in arbitration with respect to their entitlement to such indemnification or advancement of Expenses, to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 12(a); provided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce their rights under Section 4 of this Agreement. The Company shall not oppose Indemnitees right to seek any such adjudication or award in arbitration in accordance with this Agreement.
(b) Neither (i) the failure of the Company, its board of directors, any committee or subgroup of the board of directors, Independent Counsel or stockholders to have made a determination that indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor (ii) an actual determination by the Company, its board of directors, any committee or subgroup of the board of directors, Independent Counsel or stockholders that Indemnitee has not met the applicable standard of conduct, shall create a presumption that Indemnitee has or has not met the applicable standard of conduct. In the event that a determination shall have been made pursuant to Section 10 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 12 shall be conducted in all respects as a de novo trial, or arbitration, on the merits, and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 12, the Company shall, to the fullest extent not prohibited by law, have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.
(c) To the fullest extent not prohibited by law, the Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement. If a determination shall have been made pursuant to Section 10 of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 12, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitees statements not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) To the extent not prohibited by law, the Company shall indemnify Indemnitee against all Expenses that are incurred by Indemnitee in connection with any action for indemnification or advancement of Expenses from the Company under this
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Agreement or under any directors and officers liability insurance policies maintained by the Company to the extent Indemnitee is successful in such action, and, if requested by Indemnitee, shall (as soon as reasonably practicable, but in any event no later than 60 days, after receipt by the Company of a written request therefor) advance such Expenses to Indemnitee, subject to the provisions of Section 8.
(e) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification shall be required to be made prior to the final disposition of the Proceeding.
13. Contribution. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amounts incurred by Indemnitee, whether for Expenses, judgments, fines or amounts paid or to be paid in settlement, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the events and transactions giving rise to such Proceeding; and (ii) the relative fault of Indemnitee and the Company (and its other directors, officers, employees and agents) in connection with such events and transactions.
14. Non-exclusivity. The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Companys certificate of incorporation or bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Companys certificate of incorporation and bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change, subject to the restrictions expressly set forth herein or therein. Except as expressly set forth herein, no right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. Except as expressly set forth herein, the assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
15. Primary Responsibility. The Company acknowledges that Indemnitee has or may have certain rights to indemnification, advancement of expenses, and/or insurance provided by outside sources other than the Company and its insurance providers (the Secondary Indemnitor). The Company agrees that, as between the Company and the Secondary Indemnitor, the Company is primarily responsible for amounts required to be indemnified or advanced under the Companys certificate of incorporation or bylaws or this Agreement and any obligation of the Secondary Indemnitor to provide indemnification or advancement for the same amounts is
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secondary to those Company obligations. The Company waives, relinquishes and releases any right of contribution, subrogation or other recovery against the Secondary Indemnitor with respect to the liabilities for which the Company is primarily responsible under this Section 15. In the event of any payment by the Secondary Indemnitor of amounts otherwise required to be indemnified or advanced by the Company under the Companys certificate of incorporation or bylaws or this Agreement, the Secondary Indemnitor shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee for indemnification or advancement of expenses under the Companys certificate of incorporation or bylaws or this Agreement. The Secondary Indemnitor is an express third-party beneficiary of the terms of this Section 15.
16. No Duplication of Payments. Subject to Section 15 above, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received payment for such amounts under any insurance policy, contract, agreement or otherwise.
17. Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, trustees, general partners, managing members, officers, employees, agents or fiduciaries of the Company or any other Enterprise, Indemnitee shall be covered by such policy or policies to the same extent as the most favorably-insured persons under such policy or policies in a comparable position.
18. Subrogation. Subject to Section 15, in the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
19. Services to the Company. Indemnitee agrees to serve as a director or officer of the Company or, at the request of the Company, as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of another Enterprise, for so long as Indemnitee is duly elected or appointed or until Indemnitee tenders their resignation or is removed from such position. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation imposed by operation of law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position. This Agreement shall not be deemed an employment contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee. Indemnitee specifically acknowledges that any employment with the Company (or any of its subsidiaries or any Enterprise) is at will, and Indemnitee may be discharged at any time for any reason, with or without cause, with or without notice, except as may be otherwise expressly provided in any executed, written employment contract between Indemnitee and the Company (or any of its subsidiaries or any Enterprise), any existing formal severance policies adopted by the Companys board of directors or, with respect to service as a director or officer of the Company, the Companys certificate of incorporation or bylaws or the DGCL. No such document shall be subject to any oral modification thereof.
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20. Duration. This Agreement shall continue until and terminate upon the later of (a) ten years after the date that Indemnitee shall have ceased to serve as a director or officer of the Company or as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary of any other Enterprise, as applicable; or (b) one year after the final termination of any Proceeding, including any appeal, then pending in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to Section 12 of this Agreement relating thereto.
21. Successors. This Agreement shall be binding upon the Company and its successors and assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company, and shall inure to the benefit of Indemnitee and Indemnitees heirs, executors and administrators. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.
22. Severability. Nothing in this Agreement is intended to require or shall be construed as requiring the Company to do or fail to do any act in violation of applicable law. The Companys inability, pursuant to court order or other applicable law, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (i) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (ii) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (iii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
23. Enforcement. The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director or officer of the Company.
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24. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of the Companys certificate of incorporation and bylaws and applicable law.
25. Modification and Waiver. No supplement, modification or amendment to this Agreement shall be binding unless executed in writing by the parties hereto. No amendment, alteration or repeal of this Agreement shall adversely affect any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in their Corporate Status prior to such amendment, alteration or repeal. No waiver of any of the provisions of this Agreement shall constitute or be deemed a waiver of any other provision of this Agreement nor shall any waiver constitute a continuing waiver.
26. Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid, sent by facsimile or electronic mail or otherwise delivered by hand, messenger or courier service addressed:
(a) if to Indemnitee, to Indemnitees address, facsimile number or electronic mail address as shown on the signature page of this Agreement or in the Companys records, as may be updated in accordance with the provisions hereof; or
(b) if to the Company, to the attention of the Chief Executive Officer or Chief Financial Officer of the Company at 75 Shoreway Road, Suite C, San Carlos, CA 94070, or at such other current address as the Company shall have furnished to Indemnitee, with a copy (which shall not constitute notice) to Ken Clark, Wilson Sonsini Goodrich & Rosati, P.C., 650 Page Mill Road, Palo Alto, California 94304.
Each such notice or other communication shall for all purposes of this Agreement be treated as effective or having been given (i) if delivered by hand, messenger or courier service, when delivered (or if sent via a nationally-recognized overnight courier service, freight prepaid, specifying next-business-day delivery, one business day after deposit with the courier), (ii) if sent via mail, at the earlier of its receipt or three days after the same has been deposited in a regularly-maintained receptacle for the deposit of the United States mail, addressed and mailed as aforesaid, or (iii) if sent via facsimile, upon confirmation of facsimile transfer or, if sent via electronic mail, when directed to the relevant electronic mail address, if sent during normal business hours of the recipient, or if not sent during normal business hours of the recipient, then on the recipients next business day.
27. Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to
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Section 12(a) of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Delaware Court of Chancery, and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court of Chancery for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) appoint, to the extent such party is not otherwise subject to service of process in the State of Delaware, The Corporation Trust Company, Wilmington, Delaware as its agent in the State of Delaware as such partys agent for acceptance of legal process in connection with any such action or proceeding against such party with the same legal force and validity as if served upon such party personally within the State of Delaware, (iv) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court of Chancery, and (v) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court of Chancery has been brought in an improper or inconvenient forum.
28. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. This Agreement may also be executed and delivered by facsimile signature and in counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.
29. Captions. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
(signature page follows)
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The parties are signing this Indemnification Agreement as of the date stated in the introductory sentence.
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(Signature page to Indemnification Agreement)
Exhibit 23.1
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRMS CONSENT
We consent to the inclusion in this Registration Statement of Brookline Capital Acquisition Corp. on Amendment No. 1 to Form S-4 of our report dated April 7, 2022, which includes an explanatory paragraph as to the Companys ability to continue as a going concern, with respect to our audits of the financial statements of Brookline Capital Acquisition Corp. as of December 31, 2021 and 2020, for the year ended December 31, 2021, and for the period from May 27, 2020 (inception) through December 31, 2020, which report appears in the Prospectus, which is part of this Registration Statement. We also consent to the reference to our Firm under the heading Experts in such Prospectus.
/s/ Marcum LLP
Marcum LLP
Houston, TX
May 23, 2022
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the use in this Amendment No. 1 to Registration Statement on Form S-4 (No. 333-264222) of Brookline Capital Acquisition Corp. of our report dated April 8, 2022, relating to the financial statements of Apexigen, Inc. (which report expresses an unqualified opinion and includes an explanatory paragraph relating to a going concern uncertainty). We also consent to the reference to us under the heading Experts in such Registration Statement.
/s/ Moss Adams LLP
San Francisco, California
May 23, 2022