424B3
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FILED PURSUANT TO RULE 424(B)(3)
REGISTRATION NO. 333-264222

 

BROOKLINE CAPITAL ACQUISITION CORP.

280 Park Avenue, Suite 43W, New York, NY 10017

PROSPECTUS FOR 16,434,875 SHARES OF COMMON STOCK OF BROOKLINE CAPITAL ACQUISITION CORP.

On March 17, 2022, Brookline Capital Acquisition Corp., a Delaware corporation (“BCAC”), and Project Barolo Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of BCAC (“Merger Sub”), entered into a Business Combination Agreement (amended by Amendment No. 1 to the Business Combination Agreement and as it may be further amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”) with Apexigen, Inc., a Delaware corporation (“Apexigen”), pursuant to which Merger Sub will merge with and into Apexigen, with Apexigen surviving the merger as a wholly owned subsidiary of BCAC (the “Merger” and, together with the other transactions contemplated by the Business Combination Agreement and any other agreement executed and delivered in connection therewith, the “Business Combination”). Following the closing of the Merger (the “Closing”), BCAC will be referred to as the “Combined Company.”

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, to be issued in the form of shares or equity awards relating to shares of common stock, par value $0.0001 per share, of BCAC (the “BCAC Common Stock”), will be that number of shares of BCAC Common Stock equal to the quotient of (a) the sum of (i) $205,000,000, and (ii) the sum of the exercise prices of all options to purchase shares of common stock of Apexigen outstanding immediately prior to the effective time of the Merger (the “Effective Time”), divided by (b) $10.00 (the “Aggregate Closing Merger Consideration”).

At the Effective Time of the Business Combination, among other things, each share of capital stock of Apexigen (including shares of capital stock 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 in the Business Combination Agreement).

The BCAC public units (“BCAC units”), each comprised of one share of BCAC Common Stock (the “Public Shares”) and one-half of one BCAC warrant (the “Public Warrants”) to purchase shares of BCAC Common Stock, are currently listed on Nasdaq under the symbols “BCACU,” “BCAC” and “BCACW,” respectively. We intend to apply to continue the listing of the common stock of the Combined Company and the warrants of the Combined Company on Nasdaq under the symbols “APGN” and “APGNW,” respectively, upon the Closing.

In connection with the execution of the Business Combination Agreement, BCAC entered into subscription agreements with certain investors and may enter into additional subscription agreements with other investors prior to the Closing (such investors, the “PIPE Investors”) for the subscription and purchase of additional units consisting of one share of BCAC Common Stock and one-half of one warrant, with each whole warrant entitling the PIPE Investors to purchase one share of BCAC Common Stock. None of BCAC’s sponsor, directors, officers or their affiliates will be PIPE Investors. Assuming that no BCAC public stockholders exercise their redemption rights with respect to the Public Shares, the ownership of the Combined Company after the Business Combination is expected to be as follows: former Apexigen equityholders, 68.2%; BCAC public stockholders, 19.1%; Brookline Capital Holdings, LLC, as BCAC’s sponsor, together with the BCAC IPO underwriter and certain of its employees (“Sponsor and Representative”), 6.4%; PIPE Investors, 5.7%; and Lincoln Park Capital Fund, LLC (“Lincoln Park”), 0.6%. Assuming that the BCAC public stockholders fully exercise their redemption rights with respect to all of the Public Shares they hold, the ownership of the Combined Company after the Business Combination is expected to be as follows: former Apexigen equityholders, 86.3%; PIPE Investors, 7.2%; Sponsor and Representative, 5.8%; and Lincoln Park, 0.7%.

We are providing the accompanying proxy statement/prospectus and accompanying proxy card to our stockholders in connection with the solicitation of proxies to be voted at the 2022 annual meeting of the stockholders (the “Stockholders’ Meeting”), including following any adjournments or postponements of the Stockholders’ Meeting. Information about the Stockholders’ Meeting, the Business Combination and other related business to be considered by our stockholders at the Stockholders’ Meeting is included in this proxy statement/prospectus. Whether or not you plan to attend, we urge all you to read this proxy statement/prospectus, in its entirety. In particular, we urge you to read carefully the section entitled “Risk Factors” beginning on page 50 of the attached proxy statement/prospectus.

BCAC’s board of directors (the “BCAC Board”) has unanimously approved the Business Combination Agreement and the transactions contemplated thereby and recommends that BCAC’s stockholders vote “FOR” the adoption and approval of the Business Combination Agreement and the other matters to be considered at the Stockholders’ Meeting.

NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE TRANSACTIONS DESCRIBED IN THIS PROXY STATEMENT/PROSPECTUS, PASSED UPON THE MERITS OR FAIRNESS OF THE BUSINESS COMBINATION OR RELATED TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS PROXY STATEMENT/PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.

This proxy statement/prospectus is dated July 6, 2022, and is expected to be first mailed or otherwise delivered to BCAC stockholders on or about July 6, 2022.


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BROOKLINE CAPITAL ACQUISITION CORP.

280 Park Avenue, Suite 43W, New York, NY 10017

Dear Stockholder:

On March 17, 2022, Brookline Capital Acquisition Corp., a Delaware corporation (“BCAC”), and Project Barolo Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of BCAC (“Merger Sub”), entered into a Business Combination Agreement (amended by Amendment No. 1 to the Business Combination Agreement and as it may be further amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”) with Apexigen, Inc., a Delaware corporation (“Apexigen”), pursuant to which Merger Sub will merge with and into Apexigen, with Apexigen surviving the merger as a wholly owned subsidiary of BCAC (the “Merger” and, together with the other transactions contemplated by the Business Combination Agreement and any other agreement executed and delivered in connection therewith, the “Business Combination”). Following the closing of the Merger (the “Closing”), BCAC will be referred to as the “Combined Company.”

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 common stock, par value $0.0001 per share, of BCAC (the “BCAC Common Stock”), will be that number of shares of BCAC Common Stock equal to the quotient of (a) the sum of (i) $205,000,000, and (ii) the sum of the exercise prices of all options to purchase shares of common stock of Apexigen outstanding immediately prior to the effective time of the Merger (the “Effective Time”), divided by (b) $10.00 (the “Aggregate Closing Merger Consideration”).

At the Effective Time of the Business Combination:

 

   

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.

The Aggregate Closing Merger Consideration will be issued to holders of Apexigen securities at the Closing in accordance with the Business Combination Agreement. The portion of the Aggregate Closing Merger Consideration issuable to any person by virtue of the Merger will be calculated on an aggregate basis with respect to all shares of capital stock of Apexigen held of record by such person immediately prior to the Effective Time, and after such aggregation, any fractional share of BCAC Common Stock that would otherwise be issuable to such person following such aggregation will be rounded up to a whole share of BCAC Common Stock.


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The “Exchange Ratio” is equal to the quotient of (i) the Aggregate Closing Merger Consideration, divided by (ii) the aggregate number of shares of Apexigen capital stock that are issued and outstanding immediately prior to the Effective Time, calculated on a fully diluted basis, including (without duplication) shares of Apexigen Common Stock that are issued and outstanding immediately prior to the Effective Time (including shares issued upon the exercise or conversion of Apexigen Options and Apexigen Warrants in each case prior to the Effective Time that are issued and outstanding immediately prior to the Effective Time), shares of common stock issuable upon the conversion of all issued and outstanding shares of Apexigen Preferred Stock immediately prior to the Effective Time, and shares of Apexigen Common Stock that are issued or issuable upon the full exercise or conversion of all Apexigen Options and Apexigen Warrants outstanding as of the Effective Time.

Brookline Capital Holdings, LLC (the “Sponsor”) has agreed to vote its shares of BCAC Common Stock, issued to it prior to BCAC’s initial public offering (the “BCAC IPO”, and such shares, the “Sponsor Shares”), as well as the shares of common stock that are a part of units purchased in a private placement simultaneous to the BCAC IPO, and any Public Shares (as defined below) purchased during or after the BCAC IPO, in favor of the Business Combination.

In connection with the execution of the Business Combination Agreement, BCAC entered into subscription agreements with certain investors and may enter into additional subscription agreements with other investors prior to the Closing (collectively, the “Subscription Agreements” and such investors, the “PIPE Investors”), 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 units (each a “PIPE Unit”) at a purchase price of $10.00 per 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 (a “BCAC Warrant”) 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 June 30, 2022, the closing price on Nasdaq of the BCAC units was $10.20 per unit and the closing price of the Common Stock was $10.16 per share.

Concurrently with the execution of the Business Combination Agreement, BCAC, Apexigen, and Lincoln Park Capital Fund, LLC (“Lincoln Park”) entered into (a) a Purchase Agreement (the “Lincoln Park Purchase Agreement”), pursuant to which the Combined Company will have the right to direct Lincoln Park to purchase from the Combined Company up to an aggregate amount of $50,000,000 of the 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, and (b) a Registration Rights Agreement, providing for the registration of the shares of BCAC Common Stock issuable in respect of the Lincoln Park Purchase Agreement. On the date of Closing, BCAC will issue to Lincoln Park 150,000 shares of BCAC Common Stock. Additionally, 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.

In the event that the cash proceeds from (i) the PIPE Investment, as actually received by BCAC prior to or substantially concurrently with the Closing from investors to the Trust Account or that were first introduced by BCAC or its representatives or (ii) as a result of public stockholders not redeeming shares reflecting cash that is currently maintained in the Trust Account (as defined below) (the “BCAC Related Funds Amount”) at Closing that are available to the Combined Company are 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.


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At the 2022 annual meeting of the stockholders of BCAC (the “Stockholders’ Meeting”), the BCAC stockholders will vote on a proposal to approve the Business Combination Agreement (the “Business Combination Proposal”) and other proposals described in the accompanying proxy statement/prospectus, which each stockholder is encouraged to carefully read and consider.

Our public units (“BCAC units”), each comprised of one share of BCAC Common Stock (the “Public Shares”) and one-half of one BCAC Warrant (the “Public Warrants”) to purchase shares of BCAC Common Stock, are currently listed on Nasdaq under the symbols “BCACU,” “BCAC” and “BCACW,” respectively. We intend to apply to continue the listing of the common stock of the Combined Company and the warrants of the Combined Company on Nasdaq under the symbols “APGN” and “APGNW,” respectively, upon the Closing.

Pursuant to the Amended and Restated Certificate of Incorporation of BCAC, dated as of January 28, 2021 and as amended on April 26, 2022 (the “Existing Charter”), we are providing our public stockholders with the opportunity to redeem (the “Redemption Rights”), upon the Closing, shares of BCAC Common Stock then held by them for cash equal to their pro rata share of the aggregate amount on deposit in the trust account (the “Trust Account”), calculated as of two business days prior to the consummation of the Merger (including interest earned on the funds held in the Trust Account and not previously released to BCAC to pay its taxes). For illustrative purposes, based on the balance of the Trust Account of $51,536,201.70 as of June 30, 2022, the estimated per share redemption price would have been approximately $10.18. Public stockholders may elect to redeem their shares even if they vote for the Business Combination Proposal. A holder of shares of BCAC Common Stock, together with any affiliate of the holder or any other person with whom the holder is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended), will be restricted from seeking Redemption Rights with respect to more than 15% of the aggregate number of shares of BCAC Common Stock outstanding without the consent of BCAC. Accordingly, all shares of BCAC Common Stock in excess of 15% held by a holder of shares of BCAC Common Stock, together with any affiliate of such holder or any other person with whom such holder is acting in concert or as a “group,” will not be redeemed for cash without the consent of BCAC. We have no specified maximum redemption threshold under our Existing Charter, other than the aforementioned 15% threshold. Each redemption of shares of BCAC Common Stock by our Public Stockholders will reduce the amount in the Trust Account.

After giving effect to the Business Combination (assuming no Public Shares of BCAC have been redeemed and no BCAC Warrants have been exercised), we expect that there will be approximately 26,502,166 shares of Combined Company common stock consisting of (i) 18,104,074 shares issued to holders of Apexigen securities (after giving effect to the net exercise or conversion of outstanding equity awards of Apexigen and Apexigen Warrants) (ii) 1,502,000 shares held by the PIPE Investors pursuant to the Subscription Agreements, (iii) 150,000 shares held by Lincoln Park pursuant to the Purchase Agreement, (iv) 5,061,592 shares held by BCAC’s Public Stockholders, (v) 57,500 shares held by the BCAC IPO underwriter and certain of its employees, and (vi) 1,627,000 shares held by the Sponsor.

Pursuant to the terms of the Existing Charter, in no event will we redeem shares of BCAC Common Stock in an amount that would result in our failure to have net tangible assets of at least $5,000,001 after giving effect to the redemptions of shares of BCAC Common Stock by the public stockholders, including as of the time either immediately prior to or upon the Closing.

We are providing the accompanying proxy statement/prospectus and accompanying proxy card to our stockholders in connection with the solicitation of proxies to be voted at the Stockholders’ Meeting (including following any adjournments or postponements of the Stockholders’ Meeting). Information about the Stockholders’ Meeting, the Business Combination and other related business to be considered by our stockholders at the Stockholders’ Meeting is included in this proxy statement/prospectus. Whether or not you plan to attend the Stockholders’ Meeting via the virtual meeting platform, we urge all our stockholders to read this proxy statement/prospectus, including the annexes and the accompanying financial statements of BCAC and Apexigen, carefully and in their entirety. In particular, we urge you to read carefully the section entitled “Risk Factors” beginning on page 50 of the attached proxy statement/prospectus.


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After careful consideration, BCAC’s board of directors (the “BCAC Board”) has determined that the Business Combination Proposal, the Charter Proposals, the Director Election Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal, the ESPP Proposal and the Adjournment Proposal (each as defined in the accompanying proxy statement/prospectus) are fair to and in the best interests of BCAC and its stockholders and unanimously recommends that you vote or give instruction to vote “FOR” the Business Combination Proposal, “FOR” the Charter Proposals, “FOR” the Director Election Proposal, “FOR” the Nasdaq Proposal, “FOR” the Equity Incentive Plan Proposal, “FOR” the ESPP Proposal and “FOR” the Adjournment Proposal, if presented at the Stockholders’ Meeting.

The approval of each of the Business Combination Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal, the ESPP Proposal and the Adjournment Proposal, if presented, requires the affirmative vote (in person or by proxy) of the holders of a majority of the shares of BCAC Common Stock entitled to vote thereon and actually cast at the Stockholders’ Meeting, voting as a single class. In addition, in accordance with the Business Combination Agreement, the parties to the Business Combination Agreement are also requiring the affirmative vote of holders of a majority of the shares of BCAC Common Stock then outstanding, voting together as a single class, for the approval of the Charter Proposals. The approval of the Director Election Proposal requires the affirmative vote (in person or by proxy) of the holders of a plurality of the outstanding shares of BCAC Common Stock entitled to vote thereon and actually cast at the Stockholders’ Meeting.

As of June 27, 2022, the record date for the Stockholders’ Meeting (the “Record Date”), the Sponsor was entitled to vote an aggregate of 1,627,000 shares of BCAC Common Stock. Such shares currently constitute approximately 24.1% of the outstanding shares of BCAC Common Stock. The Sponsor has agreed to vote its shares of BCAC Common Stock in favor of each of the proposals presented at the Stockholders’ Meeting. The Sponsor, BCAC’s independent directors and certain of the Supporting Apexigen Stockholders (as defined in the accompanying proxy statement/prospectus) and other stockholders of Apexigen have, subject to limited exceptions, agreed to a lock-up following the Closing on their respective shares of Combined Company common stock which they already hold or will receive, pursuant to which such parties will not transfer shares of Combined Company common stock held by such parties for 180 days following the Closing subject to certain exceptions. The Sponsor has also agreed to a lock-up on the shares of stock that are a constituent part of its private placement units, pursuant to which the Sponsor will not transfer such shares of stock for 180 days following the Closing subject to certain exceptions.

Your vote is very important. Whether or not you plan to attend the Stockholders’ Meeting, please vote as soon as possible by following the instructions in this proxy statement/prospectus to make sure that your shares are represented at the Stockholders’ Meeting. If you hold your shares in “street name” through a bank, broker or other nominee, you will need to follow the instructions provided to you by your bank, broker or other nominee to ensure that your shares are represented and voted at the Stockholders’ Meeting. Unless waived by the parties to the Business Combination Agreement, consummation of the Business Combination is conditioned on the approval of the Business Combination Proposal, the Charter Proposals, the Director Election Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal and the ESPP Proposal at the Stockholders’ Meeting, subject to the terms of the Business Combination Agreement. If the Business Combination Proposal is not approved, the other proposals (except the Adjournment Proposal) will not be presented to the stockholders for a vote. If we fail to obtain the requisite stockholder approval for any of the Business Combination Proposal, the Charter Proposals, the Director Election Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal and the ESPP Proposal at the Stockholders’ Meeting, we will not satisfy the conditions to Closing set forth in the Business Combination Agreement and we may be prevented from closing the Business Combination. The Business Combination is not conditioned on approval of the Adjournment Proposal.

If you sign, date, and return your proxy card without indicating how you wish to vote, your proxy will be voted “FOR” each of the Proposals presented at the Stockholders’ Meeting. If you fail to return your proxy card or fail to instruct your bank, broker or other nominee how to vote, and do not attend the Stockholders’ Meeting in person via the virtual meeting platform, the effect will be that your shares will not be counted for purposes of determining whether a quorum is present at the Stockholders’ Meeting. If you are a stockholder of record and you attend the Stockholders’ Meeting and wish to vote in person via the virtual meeting platform, you may withdraw your proxy and vote in person via the virtual meeting platform.


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TO EXERCISE YOUR REDEMPTION RIGHTS, YOU MUST DEMAND THAT BCAC REDEEM YOUR SHARES FOR A PRO RATA PORTION OF THE FUNDS HELD IN THE TRUST ACCOUNT AND TENDER YOUR SHARES TO BCAC’S TRANSFER AGENT AT LEAST TWO BUSINESS DAYS PRIOR TO THE VOTE AT THE STOCKHOLDERS’ MEETING. YOU MAY TENDER YOUR SHARES BY EITHER DELIVERING YOUR SHARE CERTIFICATE TO THE TRANSFER AGENT OR BY DELIVERING YOUR SHARES ELECTRONICALLY USING THE CONTINENTAL STOCK TRANSFER & TRUST COMPANY’S DWAC (DEPOSIT WITHDRAWAL AT CUSTODIAN) SYSTEM. IF THE BUSINESS COMBINATION IS NOT COMPLETED, THEN ANY SHARES YOU TENDERED FOR REDEMPTION WILL NOT BE REDEEMED FOR CASH. IF YOU HOLD THE SHARES IN STREET NAME, YOU WILL NEED TO INSTRUCT THE ACCOUNT EXECUTIVE AT YOUR BANK OR BROKER TO WITHDRAW THE SHARES FROM YOUR ACCOUNT IN ORDER TO EXERCISE YOUR REDEMPTION RIGHTS.

On behalf of our board of directors, I would like to thank you for your support of BCAC and look forward to a successful completion of the Business Combination.

 

Sincerely,

 

Samuel P. Wertheimer

Chief Executive Officer and Chairman

NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE TRANSACTIONS DESCRIBED IN THIS PROXY STATEMENT/PROSPECTUS, PASSED UPON THE MERITS OR FAIRNESS OF THE BUSINESS COMBINATION OR RELATED TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS PROXY STATEMENT/PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.

This proxy statement/prospectus is dated July 6, 2022, and is expected to be first mailed or otherwise delivered to BCAC stockholders on or about July 6, 2022.


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BROOKLINE CAPITAL ACQUISITION CORP.

280 Park Avenue, Suite 43W, New York, NY 10017

NOTICE OF 2022 ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON JULY 27, 2022

TO THE STOCKHOLDERS OF BCAC:

NOTICE IS HEREBY GIVEN that the 2022 annual meeting of the stockholders of Brookline Capital Acquisition Corp., a Delaware corporation (“BCAC”), will be held at 11:00 a.m. Eastern Time, on July 27, 2022, in virtual format (the “Stockholders’ Meeting”). You are cordially invited to attend the Stockholders’ Meeting, which will be held for the following purposes:

(1) The Business Combination Proposal-To consider and vote upon a proposal to approve the Business Combination Agreement, dated as of March 17, 2022 (amended by Amendment No. 1 to the Business Combination Agreement and as it may be further amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”), by and among BCAC, Project Barolo Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of BCAC (“Merger Sub”), and Apexigen, Inc., a Delaware corporation (“Apexigen”), and the transactions contemplated thereby, pursuant to which Merger Sub will merge with and into Apexigen, with Apexigen surviving the merger as a wholly owned subsidiary of BCAC (the “Merger” and, together with the other transactions contemplated by the Business Combination Agreement, the “Business Combination”). A copy of the Business Combination Agreement is attached to this proxy statement/ prospectus as Annex A (the “Business Combination Proposal”);

(2) The Charter Proposals-To consider and vote upon two proposals to adopt the proposed Amended and Restated Certificate of Incorporation of BCAC (the “Proposed Charter”), in the form attached hereto as Annex B (the “Charter Proposals”);

(3) The Director Election Proposal-To consider and vote upon a proposal to elect eight directors to serve on the Board of Directors of the Combined Company (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 (the “Director Election Proposal”);

(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 warrants issued pursuant to the Subscription Agreements (the “PIPE Warrants”)); and (iii) the issuance of shares of BCAC Common Stock and Combined Company common stock to Lincoln Park pursuant to that certain Purchase Agreement entered into by BCAC in connection with the execution of the Business Combination Agreement;

(5) The Equity Incentive Plan Proposal-To consider and vote upon a proposal to approve and adopt the Apexigen, Inc. 2022 Equity Incentive Plan attached to this proxy statement/prospectus as Annex H (the “Equity Incentive Plan Proposal”);

(6) The ESPP Proposal-To consider and vote upon a proposal to approve and adopt the Apexigen, Inc. 2022 Employee Stock Purchase Plan attached to this proxy statement/prospectus as Annex I (the “ESPP Proposal”); and

(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


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Proposal (the “Adjournment Proposal” and, together with the Business Combination Proposal, the Charter Proposals, the Director Election Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal and the ESPP Proposal, each, a “Proposal” and collectively, the “Proposals”).

These items of business are described in the attached proxy statement/prospectus, which we encourage you to read in its entirety before voting. Only holders of record of shares of BCAC Common Stock at the close of business on June 27, 2022 (the “Record Date”) are entitled to notice of the Stockholders’ Meeting and to vote and have their votes counted at the Stockholders’ Meeting and any adjournments or postponements of the Stockholders’ Meeting.

Pursuant to the Amended and Restated Certificate of Incorporation of BCAC, dated January 28, 2021 and as amended on April 26, 2022 (the “Existing Charter”), BCAC will provide holders of shares of BCAC Common Stock with the opportunity to redeem such shares for cash equal to their pro rata share of the aggregate amount on deposit in the trust account established in connection with BCAC’s initial public offering (the “Trust Account”), calculated as of two business days prior to the consummation of the transactions contemplated by the Business Combination Proposal (including interest earned on the funds held in the Trust Account and not previously released to BCAC to pay its taxes). For illustrative purposes, based on funds in the Trust Account of approximately $51,536,201.70 on June 30, 2022, the estimated per share redemption price would have been approximately $10.18, excluding additional interest earned on the funds held in the Trust Account and not previously released to BCAC to pay taxes. Holders of BCAC Common Stock may elect to redeem their shares of BCAC Common Stock even if they vote for the Business Combination Proposal. A holder of shares of BCAC Common Stock, together with any affiliate of the holder or any other person with whom the holder is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), will be restricted from seeking Redemption Rights with respect to more than 15% of the aggregate number of shares of BCAC Common Stock outstanding without the consent of BCAC. Accordingly, all shares of BCAC Common Stock in excess of 15% held by a holder of shares of BCAC Common Stock, together with any affiliate of such holder or any other person with whom such holder is acting in concert or as a “group,” will not be redeemed for cash without the consent of BCAC. Currently, Brookline Capital Holdings, LLC, a Delaware limited liability company (the “Sponsor”) (in which each of BCAC’s directors and officers is a member), owns approximately 24.1% of the outstanding shares of BCAC Common Stock, consisting of shares of BCAC Common Stock and units, purchased in a private placement, each unit consisting of one share of BCAC Common Stock and one-half of one redeemable warrant. The Sponsor has agreed to vote any shares of BCAC Common Stock owned by it in favor of each of the Proposals presented at the Stockholders’ Meeting.

After careful consideration, BCAC’s board of directors (the “BCAC Board”) has determined that the Business Combination Proposal, the Charter Proposals, the Director Election Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal, the ESPP Proposal and the Adjournment Proposal are fair to and in the best interests of BCAC and its stockholders and unanimously recommends that you vote or give instruction to vote “FOR” the Business Combination Proposal, “FOR” the Charter Proposals, “FOR” the Director Election Proposal, “FOR” the Nasdaq Proposal, “FOR” the Equity Incentive Plan Proposal, “FOR” the ESPP Proposal and “FOR” the Adjournment Proposal, if presented at the Stockholders’ Meeting.

The approval of each of the Business Combination Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal, the ESPP Proposal and the Adjournment Proposal, if presented, requires the affirmative vote (in person or by proxy) of the holders of a majority of the shares of BCAC Common Stock entitled to vote thereon and actually cast at the Stockholders’ Meeting, voting as a single class. In addition, in accordance with the Business Combination Agreement, the parties to the Business Combination Agreement are also requiring the affirmative vote of holders of a majority of the shares of BCAC Common Stock then outstanding, voting together as a single class, for the approval of the Charter Proposals. The approval of the Director Election Proposal requires the affirmative vote (in person or by proxy) of the holders of a plurality of the outstanding shares of BCAC Common Stock entitled to vote thereon and actually cast at the Stockholders’ Meeting.

Consummation of the Business Combination is conditioned on the approval of the Business Combination Proposal, the Charter Proposals, the Director Election Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal and the ESPP Proposal at the Stockholders’ Meeting, subject to the terms of the Business Combination


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Agreement. The Business Combination is not conditioned on the Adjournment Proposal. If the Business Combination Proposal is not approved, the other proposals (except the Adjournment Proposal) will not be presented to the stockholders for a vote. The proxy statement/prospectus accompanying this notice explains the Business Combination Agreement and the transactions contemplated thereby, as well as the Proposals to be considered at the Stockholders’ Meeting. Please review the proxy statement/prospectus carefully.

All BCAC stockholders are cordially invited to attend the Stockholders’ Meeting 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/2022 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. To ensure your representation at the Stockholders’ Meeting, you are urged to complete, sign, date and return the enclosed proxy card as soon as possible. If your shares are held in an account at a brokerage firm or bank, you must instruct your broker or bank on how to vote your shares.

Your vote is important regardless of the number of shares you own. Whether you plan to attend the Stockholders’ Meeting or not, please sign, date, and return the enclosed proxy card as soon as possible in the envelope provided. If your shares are held in “street name” or are in a margin or similar account, you should contact your broker to ensure that votes related to the shares you beneficially own are properly counted.

If you have any questions or need assistance voting your shares, please call our proxy solicitor, Morrow Sodali LLC, toll free at (800) 662-5200.

Thank you for your participation. We look forward to your continued support.

 

By Order of the Board of Directors

 

Samuel P. Wertheimer

Chief Executive Officer and Chairman

July 6, 2022

IF YOU RETURN YOUR PROXY CARD WITHOUT AN INDICATION OF HOW YOU WISH TO VOTE, YOUR SHARES WILL BE VOTED IN FAVOR OF EACH OF THE PROPOSALS. TO EXERCISE YOUR REDEMPTION RIGHTS, YOU MUST ELECT TO HAVE BCAC REDEEM YOUR SHARES FOR A PRO RATA PORTION OF THE FUNDS HELD IN THE TRUST ACCOUNT AND TENDER YOUR SHARES TO BCAC’S TRANSFER AGENT AT LEAST TWO (2) BUSINESS DAYS PRIOR TO THE STOCKHOLDERS’ MEETING. YOU MAY TENDER YOUR SHARES BY EITHER DELIVERING YOUR SHARE CERTIFICATE TO THE TRANSFER AGENT OR BY DELIVERING YOUR SHARES ELECTRONICALLY USING THE CONTINENTAL STOCK TRANSFER & TRUST COMPANY’S DWAC (DEPOSIT AND WITHDRAWAL AT CUSTODIAN) SYSTEM. IF THE BUSINESS COMBINATION IS NOT COMPLETED, THEN ANY SHARES YOU TENDERED WILL NOT BE REDEEMED FOR CASH. IF YOU HOLD THE SHARES IN STREET NAME, YOU WILL NEED TO INSTRUCT THE ACCOUNT EXECUTIVE AT YOUR BANK OR BROKER TO WITHDRAW THE SHARES FROM YOUR ACCOUNT IN ORDER TO EXERCISE YOUR REDEMPTION RIGHTS. SEE “MEETING OF BCAC STOCKHOLDERS-REDEMPTION RIGHTS” FOR MORE SPECIFIC INSTRUCTIONS.


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TABLE OF CONTENTS

 

     Page  

BASIS OF PRESENTATION AND GLOSSARY

     1  

TRADEMARKS, TRADE NAMES AND SERVICE MARKS

     5  

QUESTIONS AND ANSWERS

     6  

SUMMARY

     26  

MARKET PRICE AND DIVIDEND INFORMATION

     40  

SUMMARY HISTORICAL FINANCIAL INFORMATION OF BCAC

     41  

SUMMARY HISTORICAL FINANCIAL INFORMATION OF APEXIGEN

     43  

SELECTED UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION

     44  

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS AND RISK FACTOR SUMMARY

     48  

RISK FACTORS

     50  

UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION

     122  

COMPARATIVE SHARE INFORMATION

     140  

MEETING OF BCAC STOCKHOLDERS

     143  

PROPOSAL NO. 1-THE BUSINESS COMBINATION PROPOSAL

     154  

PROPOSAL NO. 2-THE CHARTER PROPOSALS

     155  

PROPOSAL NO. 3-THE DIRECTOR ELECTION PROPOSAL

     159  

PROPOSAL NO. 4-THE NASDAQ PROPOSAL

     160  

PROPOSAL NO. 5-THE EQUITY INCENTIVE PLAN PROPOSAL

     162  

PROPOSAL NO. 6-THE ESPP PROPOSAL

     171  

PROPOSAL NO. 7-THE ADJOURNMENT PROPOSAL

     177  

INFORMATION ABOUT BCAC

     178  

MANAGEMENT OF BCAC

     186  

BCAC MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

     194  

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF BCAC AND THE COMBINED COMPANY

     201  

INFORMATION ABOUT APEXIGEN

     204  

APEXIGEN’S BUSINESS

     204  

APEXIGEN’S MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

     242  

MANAGEMENT OF THE COMBINED COMPANY FOLLOWING THE BUSINESS COMBINATION

     257  

EXECUTIVE COMPENSATION OF APEXIGEN

     267  

THE BUSINESS COMBINATION

     277  

THE BUSINESS COMBINATION AGREEMENT

     279  

OTHER AGREEMENTS

     294  

BACKGROUND OF THE BUSINESS COMBINATION

     299  

ANTICIPATED ACCOUNTING TREATMENT

     314  

MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS

     315  

COMPARISON OF STOCKHOLDERS’ RIGHTS

     322  

DESCRIPTION OF CAPITAL STOCK OF THE COMBINED COMPANY

     329  

SECURITIES ACT RESTRICTIONS ON RESALE OF COMBINED COMPANY COMMON STOCK

     334  

CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

     335  

PUBLIC TRADING MARKETS

     339  

EXPERTS

     339  

LEGAL MATTERS

     339  

 

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     Page  

OTHER MATTERS

     340  

APPRAISAL RIGHTS

     340  

WHERE YOU CAN FIND MORE INFORMATION

     340  

INDEX TO FINANCIAL STATEMENTS

     F-1  

Annexes

  

A – Business Combination Agreement (including Amendment No. 1 to the Business Combination Agreement)

  

B – Proposed Charter

  

C – Sponsor Support Agreement

  

D – Stockholder Support Agreement

  

E – Registration Rights and Lock-Up Agreement

  

F – Form of PIPE Subscription Agreement

  

G-1 – Lincoln Park Purchase Agreement

  

G-2 – Registration Rights Agreement

  

H – 2022 Equity Incentive Plan

  

I – 2022 Employee Stock Purchase Plan

  

J – Form of the Amended and Restated Bylaws of the Combined Company

  

 

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BASIS OF PRESENTATION AND GLOSSARY

As used in this proxy statement/prospectus, unless otherwise noted or the context otherwise requires, references to:

Additional Contributions” are to the amounts the Sponsor has agreed to contribute as a non-interest bearing loan of $0.033 for each Public Share that was not redeemed in the April Partial Redemption (as defined below) to BCAC on a monthly basis commencing on May 2, 2022, and occurring on the 2nd day of each subsequent month, or portion thereof, up to October 2, 2022, that is needed by BCAC to complete the Business Combination no later than November 2, 2022 (the “Extended Date”);

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 the quotient of (a) the sum of (i) $205,000,000 and (ii) the sum of the exercise prices of all options to purchase shares of Apexigen Common Stock outstanding immediately prior to the Effective Time, divided by (b) $10.00;

Amendment No. 1 to the Business Combination Agreement” are to that certain Amendment No. 1 to the Business Combination Agreement entered into as of June 26, 2022, by and among BCAC, Merger Sub and Apexigen;

Apexigen” are to Apexigen, Inc., a Delaware corporation;

Apexigen Board” are to the board of directors of Apexigen;

Apexigen capital stock” are to shares of Apexigen Common Stock and Apexigen Preferred Stock;

Apexigen Common Stock” are to shares of common stock, par value $0.001 per share, of Apexigen;

Apexigen Option” are to each option to purchase shares of Apexigen Common Stock that is outstanding at the Effective Time;

Apexigen Preferred Stock” are to shares of preferred stock, par value $0.001 per share, of Apexigen;

Apexigen stockholders” are to the stockholders of Apexigen prior to the Closing;

Apexigen Warrant” are to each warrant to purchase shares of common stock or preferred stock of Apexigen;

April Partial Redemption” are to the BCAC Public Stockholders’ election in April 2022 to redeem 688,408 shares at $10.10 per share for total redemption proceeds of approximately $7.0 million;

BCAC” are to Brookline Capital Acquisition Corp., a Delaware corporation;

BCAC Common Stock” are to shares of common stock, par value $0.0001 per share, of BCAC prior to the Closing;

BCAC Board” are to the board of directors of BCAC prior to the Closing;

BCAC Board Recommendation” is a recommendation of the BCAC Board to BCAC stockholders that such stockholders approve the proposals included herein;

BCAC IPO” are to the initial public offering by BCAC, which closed on February 2, 2021;

BCAC Option” are to an option to purchase shares of BCAC Common Stock;

BCAC Related Funds Amount” means the amount of cash proceeds from (i) the PIPE Investment, as actually received by BCAC prior to or substantially concurrently with the Closing from investors to the Trust Account or that were first introduced by BCAC or its representatives or (ii) as a result of public stockholders not redeeming shares reflecting cash that is currently maintained in the Trust Account;

 

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BCAC units” are to the units, comprised on one share of BCAC Common Stock and one-half of one redeemable BCAC warrant, issued at the closing of the BCAC IPO;

BCAC warrants” are to all outstanding warrants of BCAC, each whole warrant of which entitles the holder to purchase one share of BCAC Common Stock at an exercise price of $11.50 per share;

Business Combination” are to the Merger and the other transactions contemplated by the Business Combination Agreement and any other agreement executed and delivered in connection therewith;

Business Combination Agreement” are to that certain Business Combination Agreement entered into on March 17, 2022, by and among Brookline Capital Acquisition Corp., a Delaware corporation (“BCAC”), and Project Barolo Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of BCAC (“Merger Sub”), and Apexigen, Inc., a Delaware corporation (“Apexigen”) (amended by Amendment No. 1 to the Business Combination Agreement and as it may be further amended, supplemented or otherwise modified from time to time in accordance with its terms), pursuant to which Merger Sub will merge with and into Apexigen, with Apexigen surviving the merger as a wholly owned subsidiary of BCAC (the “Merger”);

Closing” are to the closing of the transactions contemplated by the Business Combination Agreement;

Code” are to the Internal Revenue Code of 1986, as amended;

Combined Company” are to BCAC following the Business Combination and the other transactions contemplated by the Business Combination Agreement;

Combined Company Board” are to the board of directors of the Combined Company;

Combined Company common stock” are to shares of BCAC Common Stock following the Closing;

Combined Company Option” are to each option to purchase shares of Combined Company common stock following the Closing;

Completion Window” are to the period that expires on November 2, 2022;

DGCL” are to the Delaware General Corporation Law, as may be amended from time to time;

Effective Time” are to such a time when the merger certificate has been accepted for filing by the Secretary of State of the State of Delaware, or at such later time as may be agreed by BCAC and Apexigen in writing and specified in the merger certificate;

Exchange Act” are to the Securities Exchange Act of 1934, as amended;

Exchange Ratio” are to the amount that is equal to the quotient of (i) the Aggregate Closing Merger Consideration, divided by (ii) the number of shares of Apexigen capital stock that are issued and outstanding immediately prior to the Effective Time, calculated on a fully diluted basis, including shares of common stock of Apexigen that are issued and outstanding immediately prior to the Effective Time, shares of common stock issuable upon the conversion of all issued and outstanding shares of Apexigen Preferred Stock immediately prior to the Effective Time, and shares of capital stock of Apexigen that are issued or issuable upon the full exercise or conversion of all Apexigen Options and Apexigen Warrants outstanding as of the Effective Time;

Existing Charter” are to the Amended and Restated Certificate of Incorporation of BCAC, dated as of January 28, 2021, as amended April 26, 2022;

 

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Extension Amendment” are to the amendment to the Existing Charter approved by BCAC’s stockholders on April 26, 2022 to extend 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;

Founder Shares” are to 1,437,500 shares of our common stock initially purchased by the Sponsor in a private placement prior to the BCAC IPO, of which 57,500 shares were subsequently transferred to Representative and 1,380,000 shares remain held by the Sponsor;

GAAP” are to generally accepted accounting principles in the United States, as applied on a consistent basis;

Investment Company Act” are to the Investment Company Act of 1940, as amended;

Key Apexigen Stockholders” are to those certain stockholders of Apexigen who are parties to the Stockholder Support Agreement;

Merger are to the business combination transaction pursuant to which Merger Sub will merge with and into Apexigen with Apexigen surviving the Merger as a wholly owned subsidiary of BCAC;

Merger Sub” are to Project Barolo Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of BCAC;

Modification in Recommendation” are to a modification by the BCAC Board to change the BCAC Board Recommendation;

Nasdaq” are to The Nasdaq Capital Market;

PIPE Investment” are to the purchase of an aggregate of 1,502,000 PIPE Units pursuant to the Subscription Agreements;

PIPE Unit” are to each of the units, comprised of one share of BCAC Common Stock and one-half of one BCAC warrant (a “PIPE Warrant”), purchased by certain investors pursuant to the Subscription Agreements;

Public Shares” are to shares of BCAC Common Stock sold as part of the BCAC units (whether they were purchased in the BCAC IPO or thereafter in the open market);

Public Stockholders” are to the holders of BCAC’s Public Shares, including the Sponsor and BCAC’s management team to the extent the Sponsor and/or members of BCAC’s management team purchase Public Shares in the open market, provided that the Sponsor’s and each member of BCAC’s management team’s status as a “public stockholder” will only exist with respect to such Public Shares;

Record Date” are to June 27, 2022, the record date for the Stockholders’ Meeting;

Redemption Rights” are to 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;

Registrant” are to Brookline Capital Acquisition Corp., a Delaware corporation;

“Representative” are to Ladenburg Thalmann & Co. Inc., the BCAC IPO underwriter, and certain of its employees;

 

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Representative Shares” are to the Founder Shares held by the Representative;

SEC” are to the U.S. Securities and Exchange Commission;

Securities Act” are to the Securities Act of 1933, as amended;

Sponsor” are to Brookline Capital Holdings, LLC, a Delaware limited liability company;

Sponsor Shares” are to the shares of BCAC Common Stock issued to Sponsor prior to BCAC’s initial public offering and not transferred to the Representative;

Supporting Apexigen Stockholders” are to 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;

Trust Account” are to the trust account established by BCAC for the benefit of its stockholders at J.P. Morgan Chase Bank, N.A.; and

Warrants” are to BCAC warrants sold as part of the BCAC units (whether they were purchased in the BCAC IPO or thereafter in the open market).

Unless specified otherwise, amounts in this proxy statement/prospectus are presented in United States (“U.S.”) dollars.

Defined terms in the financial statements contained in this proxy statement/prospectus have the meanings ascribed to them in the financial statements.

 

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TRADEMARKS, TRADE NAMES AND SERVICE MARKS

BCAC and Apexigen own or have rights to trademarks, trade names and service marks that they use in connection with the operation of their business. In addition, their names, logos and website names and addresses are their trademarks or service marks. Other trademarks, trade names and service marks appearing in this proxy statement/prospectus are the property of their respective owners. Solely for convenience, in some cases, the trademarks, trade names and service marks referred to in this proxy statement/ prospectus, including logos, artwork and other visual displays, may appear without the applicable ®, TM and SM symbols, but BCAC and Apexigen will assert, to the fullest extent under applicable law, their rights to these trademarks, trade names and service marks. BCAC and Apexigen do not intend the use or display of other entities’ trade names, trademarks, or service marks to imply a relationship with, or endorsement or sponsorship of, any other entity.

 

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QUESTIONS AND ANSWERS

The questions and answers below highlight only selected information from this proxy statement/prospectus and only briefly address some commonly asked questions about the Business Combination, the Stockholders’ Meeting, and the Proposals (as defined herein) to be presented at the Stockholders’ Meeting. The following questions and answers do not include all the information that is important to BCAC stockholders. You are urged to carefully read this entire proxy statement/prospectus, including the annexes and the other documents referred to herein, to fully understand the Business Combination and the voting procedures for the Stockholders’ Meeting.

QUESTIONS AND ANSWERS ABOUT THE BUSINESS COMBINATION

 

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.”

BCAC will hold the Stockholders’ Meeting to, among other things, obtain the approvals required for the Business Combination, and you are receiving this proxy statement/prospectus in connection with such meeting. See “The Business Combination Agreement.” In addition, a copy of the Business Combination Agreement is attached to this proxy statement/prospectus as Annex A. We urge you to carefully read this proxy statement/prospectus, including the annexes and the other documents referred to herein, in their entirety.

 

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.

At the Effective Time:

 

   

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

 

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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.

The Aggregate Closing Merger Consideration will be issued to holders of Apexigen securities at the Closing in accordance with the Business Combination Agreement. The portion of the Aggregate Closing Merger Consideration issuable to any person by virtue of the Merger will be calculated on an aggregate basis with respect to all shares of capital stock of Apexigen held of record by such person immediately prior to the Effective Time, and after such aggregation, any fractional share of BCAC Common Stock that would otherwise be issuable to such person following such aggregation will be rounded up to a whole share of BCAC Common Stock.

 

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 July 27, 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

 

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  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 $10.18 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 $10.18 per share on the redemption of their Public Shares. See “The Business Combination Agreement-Termination” and “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” for more information.

BCAC is, and after the Closing will continue to be, managed by its board of directors. Following the closing, the size of our board of directors will increase to eight directors and will consist of Xiaodong Yang, Herb Cross, Jakob Dupont, Meenu Karson, Gordon Ringold, Scott Smith, Samuel Wertheimer, and Dan Zabrowski. Following the Closing, we expect that a majority of the directors will be independent under applicable Nasdaq listing rules. Other than Mr. Wertheimer, there are no existing officers or directors of BCAC who will hold any post-combination employment or directorships with, or receive any benefits from, the Combined Company, and there have been no discussions of anyone doing so. 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

 

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  commencing 30 days after the Closing and terminating on the five year anniversary of the Closing. As of June 30, 2022, the closing price on Nasdaq of the BCAC units was $10.20 per unit and the closing price of the BCAC Common Stock was $10.16 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.” If the 1,502,000 shares of BCAC Common Stock to be issued to the PIPE Investors were currently outstanding, such shares would have an aggregate market value of $15,260,320 based upon the closing price of $10.16 per share of BCAC Common Stock on Nasdaq on June 30, 2022.

In connection with the execution of the Business Combination Agreement, BCAC, Apexigen, and Lincoln Park also entered into (a) the Lincoln Park Purchase Agreement to establish an equity line, and (b) the Registration Rights Agreement. Pursuant to the terms of the Lincoln Park Purchase Agreement, the Combined Company will have the right to direct Lincoln Park to purchase from the Combined Company an aggregate of up to $50,000,000 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.

Upon satisfaction of certain conditions, the Combined Company will have the right to direct Lincoln Park to purchase up to $500,000 per trading day (subject to the adjustments described in the Lincoln Park Purchase Agreement) of Combined Company common stock (each such purchase, a “Regular Purchase”). The purchase price for shares of Common Stock to be purchased by Lincoln Park under a Regular Purchase will be equal to the lower of (in each case, subject to the adjustments described in the Lincoln Park Purchase Agreement): (i) the lowest sale price for Combined Company common stock on the applicable purchase date and (ii) the arithmetic average of the three lowest closing sale prices for Combined Company common stock during the 10 consecutive trading days immediately preceding the purchase date. If the Combined Company directs Lincoln Park to purchase the maximum number of shares of Combined Company common stock that the Combined Company may sell in a Regular Purchase, then in addition to such Regular Purchase, and subject to certain conditions and limitations in the Lincoln Park Purchase Agreement, the Combined Company may direct Lincoln Park to make an “accelerated purchase” of an additional number of shares of Combined Company common stock which may not exceed the lesser of: (i) 300% of the number of shares directed by the Combined Company to be purchased by Lincoln Park pursuant to the corresponding Regular Purchase and (ii) 30% of the total number of shares of Combined Company common stock traded during a specified period on the applicable purchase date as set forth in the Lincoln Park Purchase Agreement. The purchase price for such shares will be 95% of the lower of (i) the volume weighted average price of Combined Company common stock over a certain portion of the date of sale as set forth in the Lincoln Park Purchase Agreement and (ii) the closing sale price of Combined Company common stock on the date of sale. Under certain circumstances, the Combined Company may direct Lincoln Park to purchase shares in multiple Accelerated Purchases on the same trading day.

In consideration for Lincoln Park’s execution and delivery of the Lincoln Park Purchase Agreement, BCAC will issue to Lincoln Park 150,000 shares of BCAC Common Stock on the date of Closing. Additionally, 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 number of such shares exceed 500,000. See “Other Agreements-Lincoln Park Purchase Agreement and Registration Rights Agreement.”

 

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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.

The table below shows the relative ownership levels of holders of Combined Company common stock following the Business Combination under varying redemption scenarios (after giving effect to the April Partial Redemption and assuming a redemption price of $10.20 per share).

 

    No Additional
Redemptions
    50%
Redemptions
    75%
Redemptions
    Maximum
Redemptions
 
    Number of
Shares
    %     Number of
Shares
    %     Number of
Shares
    %     Number of
Shares
    %  

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%  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

    26,502,166       100.0%       23,971,370       100.0%       22,531,492       100.0%       20,980,574       100.0%  
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

The table below presents possible sources of dilution and the extent of such dilution that non-redeeming public stockholders could experience in connection with the Closing across a range of varying redemption scenarios (after giving effect to the April Partial Redemption and assuming a redemption price of $10.20 per share). In an effort to illustrate the extent of such dilution, the table below assumes (i) the exercise of all 2,875,000 Public Warrants, 751,000 PIPE Warrants and 123,500 Private Placement Warrants, (ii) the issuance of the maximum number of shares of Combined Company common stock to Lincoln Park 90 calendar days after the date of the Closing pursuant to the Lincoln Park Purchase Agreement (but not such shares as the Combined Company can direct Lincoln Park to purchase), (iii) the exercise of the assumed Apexigen Options and Apexigen Warrants, and (iv) the full issuance and exercise of shares under the EIP and ESPP that would be issuable upon the Closing.

 

    No Additional
Redemptions
     50%
Redemptions
     75%
Redemptions
     Maximum
Redemptions
 
    Number of
Shares
    %      Number of
Shares
    %      Number of
Shares
    %      Number of
Shares
    %  

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%  
 

 

 

   

 

 

    

 

 

   

 

 

    

 

 

   

 

 

    

 

 

   

 

 

 

Additional Potential Dilution

                  

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%  

 

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    No Additional
Redemptions
     50%
Redemptions
     75%
Redemptions
     Maximum
Redemptions
 
    Number of
Shares
    %      Number of
Shares
    %      Number of
Shares
    %      Number of
Shares
    %  

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%  
 

 

 

   

 

 

    

 

 

   

 

 

    

 

 

   

 

 

    

 

 

   

 

 

 

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%  
 

 

 

   

 

 

    

 

 

   

 

 

    

 

 

   

 

 

    

 

 

   

 

 

 

 

(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.

For more information, see “Unaudited Pro Forma Condensed Combined Financial Information.”

 

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.

 

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QUESTIONS AND ANSWERS ABOUT THE STOCKHOLDERS’ MEETING

 

Q:

WHEN AND WHERE IS THE STOCKHOLDERS’ MEETING?

 

A:

The Stockholders’ Meeting will be held at 11:00 a.m. Eastern Time, on July 27, 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/2022 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 eight 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.”

BCAC will hold the Stockholders’ Meeting to consider and vote upon these proposals (collectively, the “Proposals”). This proxy statement/prospectus contains important information about the proposed Merger and the other matters to be acted upon at the Stockholders’ Meeting.

Stockholders should read this proxy statement/prospectus carefully, including the annexes and the other documents referred to herein.

Pursuant to the Business Combination Agreement, consummation of the Business Combination is conditioned on the approval of each of the Business Combination Proposal, the Charter Proposals, the Director Election Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal and the ESPP Proposal. If the Business Combination Proposal is not approved, the other proposals, except the Adjournment Proposal, will not be presented to stockholders for a vote.

 

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The vote of stockholders is important. Stockholders are encouraged to vote as soon as possible after carefully reviewing this proxy statement/prospectus.

 

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.

Apexigen’s Wholly Owned Pipeline: Apexigen’s wholly owned pipeline is focused on innovative antibody-based therapeutics for oncology, with an emphasis on new immuno-oncology agents that may harness the patient’s immune system to combat and eradicate cancer. Apexigen’s pipeline of immuno-oncology therapeutic candidates is led by sotigalimab, which is currently in Phase 2 clinical development, and also includes multiple preclinical programs.

 

   

Sotigalimab: a CD40 agonist antibody with two key features. Sotiga is designed to specifically bind to the CD40 ligand (“CD40L”) binding domain to mimic natural CD40L signaling. In addition, Apexigen engineered a mutation into the fragment crystallizable (Fc) region to increase FcgRIIb binding to increase cross-linking and agonistic potency and eliminate FcgRIIIa 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 Food and Drug Administration (“FDA”) about a potential registrational path in post-anti-PD-(L)1 melanoma in mid-2022.

 

   

APX601: an anti-TNFR2 antagonist antibody designed to reverse immune suppression in the tumor microenvironment and unleash immune-mediated tumor killing activity through unique mechanisms of action. Based on APX601’s mechanisms of action, Apexigen believes APX601 can deplete and inactivate TNFR2-expressing Tregs, reverse myeloid-mediated T cell suppression and directly kill

 

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TNFR2-expressing tumor cells. In preclinical mouse models, APX601 shows anti-tumor activity and is well-tolerated. Apexigen plans to develop APX601 for the treatment of multiple tumor indications of unmet medical need.

Partnered Programs: Apexigen has out-licensed five programs to third parties for the development of product candidates that were discovered using the APXiMAB platform. One of these out-licensed programs has yielded a product that is commercially available. The other out-licensed product candidates are advancing in clinical development.

APXiMAB discovery platform: This platform has enabled Apexigen and its licensing partners to discover antibodies for clinical development against a variety of molecular targets, including targets that are difficult to drug with conventional antibody technologies.

 

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.

Based on its due diligence investigations of Apexigen and the industry in which it operates, including the financial and other information provided by Apexigen in the course of their negotiations in connection with the Business Combination Agreement, BCAC believes that consummating the Merger is advisable and in the best interests of BCAC and its stockholders. See “Meeting of BCAC’s Stockholders-Recommendation of BCAC Board of Directors” and “Background of the Business Combination-The BCAC Board’s Reasons for Approval of the Business Combination.

 

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.

 

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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” and “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.

These factors are discussed in greater detail in the section entitled “Background of the Business Combination—The BCAC Board’s Reasons for the Approval of the Business Combination” as well as in the section entitled “Risk Factors—Risks Related to 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”).

 

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Notwithstanding the foregoing, a holder of Public Shares, together with any affiliate of such holder or any other person with whom such holder is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Exchange Act) will be restricted from seeking redemption with respect to more than 15% of the total then outstanding Public Shares without the consent of BCAC. Accordingly, all Public Shares in excess of 15% held by a Public Stockholder, together with any affiliate of such stockholder or any other person with whom such holder is acting in concert or as a “group,” will not be redeemed without the consent of BCAC.

Under BCAC’s Existing Charter, the Public Shares can only be redeemed if BCAC has at least $5,000,001 of net tangible assets remaining, including at the time either immediately prior to or upon the Closing.

 

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 $51,536,201.70, or $10.18 per share, as of June 30, 2022). 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.

Any request for redemption, once made by a holder of Public Shares, may be withdrawn at any time up to the time the vote is taken with respect to the Business Combination Proposal at the Stockholders’ Meeting. If you deliver your shares for redemption to BCAC’s transfer agent and later decide prior to the Stockholders’ Meeting not to elect redemption, you may request that BCAC’s transfer agent return the shares (physically or electronically). If a holder of Public Shares properly makes a request for redemption and the Public Shares are delivered as described to BCAC’s transfer agent as described herein, then, if the Merger is consummated, BCAC will redeem these shares for a pro rata portion of funds deposited in the Trust Account. If you exercise your Redemption Rights, then you will be exchanging your Public Shares for cash and you will cease to have any rights as a BCAC stockholder (other than the right to receive the redemption amount) upon consummation of the Merger.

A BCAC stockholder holding both Public Shares and Warrants may redeem its Public Shares but retain the Warrants, which, if the Business Combination closes, will become warrants of the Combined Company. If redemption occurs at an assumed $10.18 per share in which 5,061,592 Public Shares are redeemed, such redeeming public stockholders, together with all previously redeeming public stockholders, will retain an aggregate of 2,874,942 detachable redeemable warrants, which have an aggregate value of approximately $316,243.62 based on the closing price of our detachable redeemable warrants on Nasdaq of $0.1100 on June 30,

 

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2022. In the event that the BCAC Related Funds Amount available to the Combined Company 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.

 

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.”

All holders considering exercising Redemption Rights are urged to consult their tax advisor on the tax consequences to them of an exercise of Redemption Rights, including the applicability and effect of U.S. federal, state, local and non-U.S. tax laws. This proxy statement/prospectus shall not serve as an information statement for the stockholders of Apexigen for purposes of understanding the tax consequences of the Business Combination for such stockholders. If such an information statement is to be sent to Apexigen stockholders, Apexigen will separately prepare such document.

 

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.

Following the Closing, BCAC may redeem your Public Warrants prior to their exercise at a time that is disadvantageous to you. BCAC will have the ability to redeem outstanding Public Warrants at any time after they become exercisable and prior to their expiration, at a price of $0.01 per Public Warrant, provided that the closing price of common stock equals or exceeds $18.00 per share (as adjusted for adjustments to the number of shares issuable upon exercise or the exercise price of a warrant) for any 20 trading days within a 30 trading day period ending on the third trading day prior to proper notice of such redemption, provided that certain other conditions are met. If and when the Public Warrants become redeemable by us, we may exercise the redemption right even if we are unable to register or qualify the underlying securities for sale under all applicable state securities laws. As a result, BCAC may redeem the warrants as set forth above even if the holders are otherwise unable to exercise the warrants. Redemption of the outstanding Public Warrants could force you (i) to exercise your Public Warrants and pay the exercise price therefor at a time when it may be disadvantageous for you to do so, (ii) to sell your Public Warrants at the then-current market price when you might otherwise wish to hold your Public Warrants or (iii) to accept the nominal redemption price which, at the time the outstanding Public Warrants are called for redemption, is likely to be

 

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substantially less than the market value of your public warrants. None of the Private Placement Warrants will be redeemable by BCAC so long as they are held by the initial stockholders or their permitted transferees.

Historical trading prices for our shares of common stock have varied between a low of approximately $9.81 per share on August 5, 2021 to a high of approximately $10.65 per share on February 22, 2022 but have not approached the $18.00 per share threshold for redemption (which, as described above, would be required for 20 trading days within a 30 trading-day period after they become exercisable and prior to their expiration, at which point the Public Warrants would become redeemable). In the event that BCAC elects to redeem all of the redeemable warrants as described above, BCAC will fix a date for the redemption. Notice of redemption will be mailed by first class mail, postage prepaid, by us not less than 30 days prior to the redemption date to the registered holders of the Public Warrants to be redeemed at their last addresses as they appear on the registration books. Any notice mailed in the manner provided in the Warrant Agreement dated January 28, 2021, which will be amended and restated immediately prior to the issuance of the PIPE Warrants, between BCAC and Continental Stock Transfer & Trust Company, as warrant agent (the “Warrant Agreement”) shall be conclusively presumed to have been duly given whether or not the registered holder received such notice. In addition, beneficial owners of the redeemable warrants will be notified of such redemption by our posting of the redemption notice to The Depository Trust Company.

 

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 June 27, 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

 

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  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 June 27, 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: The affirmative vote (in person or by proxy) of the holders of a majority of the shares of BCAC Common Stock entitled to vote thereon and actually cast at the Stockholders’ Meeting, voting as a single class, is required to approve the Business Combination Proposal. Accordingly, a stockholder’s failure to vote by proxy or to vote in person (which would include presence at a virtual meeting) at the Stockholders’ Meeting, as well as an abstention from voting and a broker 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.

The Charter Proposals: The affirmative vote (in person or by proxy) of the holders of a majority of the shares of BCAC Common Stock entitled to vote thereon, voting as a single class, is required to approve the Charter Proposals. Accordingly, a stockholder’s failure to vote by proxy or to vote in person (which would include presence at a virtual meeting) at the Stockholders’ Meeting, as well as an abstention from voting and a broker non-vote with regard to the Charter Proposals, will have the same effect as a vote “AGAINST” such proposal. The Closing is conditioned on the approval of the Charter Proposals, subject to the terms of the Business Combination Agreement. If the Business Combination Proposal is not approved, the Charter Proposals will not be presented to the stockholders for a vote.

The Director Election Proposal: The affirmative vote (in person or by proxy) of the holders of a plurality of the outstanding shares of BCAC Common Stock entitled to vote thereon and actually cast at the Stockholders’ Meeting, is required to approve the Director Election Proposal. Accordingly, a stockholder’s failure to vote by proxy or to vote in person (which would include presence at a virtual meeting) at the Stockholders’ Meeting, as well as an abstention from voting and a broker non-vote with regard to the Director Election Proposal, will have no effect on the election of directors. If the Business Combination Proposal is not approved, the Director Election Proposal will not be presented to the stockholders for a vote.

The Nasdaq Proposal: The affirmative vote (in person or by proxy) of the holders of a majority of the shares of BCAC Common Stock entitled to vote thereon and actually cast at the Stockholders’ Meeting, voting as a single class, is required to approve the Nasdaq Proposal. Accordingly, a stockholder’s failure to vote by proxy or to vote in person (which would include presence at a virtual meeting) at the Stockholders’ Meeting, as well as an abstention from voting and a broker non-vote with regard to the Nasdaq Proposal, will have no effect on the Nasdaq Proposal. The Closing is conditioned on the approval of the Nasdaq Proposal, subject to the terms of the Business Combination Agreement. If the Business Combination Proposal is not approved, the Nasdaq Proposal will not be presented to the stockholders for a vote.

 

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The Equity Incentive Plan Proposal: The affirmative vote (in person or by proxy) of the holders of a majority of the shares of BCAC Common Stock entitled to vote thereon and actually cast at the Stockholders’ Meeting, voting as a single class, is required to approve the Equity Incentive Plan Proposal. Accordingly, a stockholder’s failure to vote by proxy or to vote in person (which would include presence at a virtual meeting) at the Stockholders’ Meeting, as well as an abstention from voting and a broker non-vote with regard to the Equity Incentive Plan Proposal, will have no effect on the Equity Incentive Plan Proposal. The Closing is conditioned on the approval of the Equity Incentive Plan Proposal, subject to the terms of the Business Combination Agreement. If the Business Combination Proposal is not approved, the Equity Incentive Plan Proposal will not be presented to the stockholders for a vote.

The ESPP Proposal: The affirmative vote (in person or by proxy) of the holders of a majority of the shares of BCAC Common Stock entitled to vote thereon and actually cast at the Stockholders’ Meeting, voting as a single class, is required to approve the ESPP Proposal. Accordingly, a stockholder’s failure to vote by proxy or to vote in person (which would include presence at a virtual meeting) at the Stockholders’ Meeting, as well as an abstention from voting and a broker non-vote with regard to the ESPP Proposal, will have no effect on the ESPP Proposal. The Closing is conditioned on the approval of the ESPP Proposal, subject to the terms of the Business Combination Agreement. If the Business Combination Proposal is not approved, the ESPP Proposal will not be presented to the stockholders for a vote.

The Adjournment Proposal: The affirmative vote (in person or by proxy) of the holders of a majority of the shares of BCAC Common Stock entitled to vote thereon and actually cast at the Stockholders’ Meeting, voting as a single class, is required to approve the Adjournment Proposal. Accordingly, a stockholder’s failure to vote by proxy or to vote in person (which would include presence at a virtual meeting) at the Stockholders’ Meeting, as well as an abstention from voting and a broker non-vote with regard to the Adjournment Proposal, will have no effect on the Adjournment Proposal. The Closing is not conditioned on the approval of the Adjournment Proposal.

As of June 27, 2022, the Record Date, the Sponsor was entitled to vote the BCAC Voting Shares. Such shares currently constitute approximately 24.1% of the outstanding shares of BCAC’s common stock. The Sponsor has agreed to vote all of its shares of BCAC Common Stock, in favor of each of the Proposals presented at the Stockholders’ Meeting. See “Other Agreements-Sponsor Support Agreement.”

 

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.

These interests include, among other things:

 

   

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 $14,605,000 based upon the closing price of $10.16 per share of BCAC Common Stock on the Nasdaq on June 30, 2022, of which the 1,380,000 Founder Shares held by the Sponsor had an aggregate market value of $14,020,800. 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.

 

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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 $2,519,400 based upon the closing price of $10.20 per unit on the Nasdaq on June 30, 2022. 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 expenses incurred by them in connection with certain activities on BCAC’s behalf, such as identifying and investigating possible business targets and business combinations. However, if BCAC fails to consummate a business combination within the Completion Window, they will not have any claim against the Trust Account for reimbursement. Accordingly, BCAC may not be able to reimburse these expenses if the Business Combination or another business combination is not consummated within the Completion Window. As of the date of this prospectus, there were no out-of-pocket expenses incurred by BCAC’s directors, officers or their affiliates that have not otherwise been reimbursed from BCAC’s working capital funds following the BCAC IPO. Additionally, the Sponsor is entitled to $10,000 per month for office space, utilities, administrative and support services provided to BCAC’s management team, which commenced on January 28, 2021 and will continue through the earlier of consummation of the Business Combination and BCAC’s liquidation.

 

   

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

 

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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.

There will be no finder’s fees, reimbursements or cash payments made by BCAC to the Sponsor or BCAC’s officers or directors, or any of BCAC’s or its officers’ or directors’ affiliates, for services rendered to BCAC prior to or in connection with the completion of the Business Combination, other than payment of the amount described above for office space, utilities, administrative and support services, and repayments of the Additional Contributions and any working capital loans made as non-interest bearing notes (the “Working Capital Notes”) by our Sponsor or affiliates of our Sponsor to fund working capital deficiencies or finance transaction costs in connection with an initial business combination, which Working Capital Notes will be repayable by BCAC upon Closing. The Sponsor, in its discretion, may in lieu of having the Working Capital Notes repaid upon the Closing, instead convert the Working Capital Notes into units of BCAC, at a price of $10.00 per unit, upon the Closing, provided that the maximum amount that may be converted is no more than $1,500,000. The Sponsor and BCAC’s officers and directors or any of their respective affiliates will also be reimbursed for any out-of-pocket expenses incurred in connection with BCAC’s formation, the BCAC IPO and activities on BCAC’s behalf such as identifying potential target

 

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businesses and performing due diligence on suitable business combinations. There is no cap or ceiling on the reimbursement of out-of-pocket expenses incurred by such persons in connection with activities on our behalf. As of the date of this prospectus, the Sponsor had not incurred any out-of-pocket expenses in connection with the Business Combination that, as of such date, had not been reimbursed by BCAC from BCAC’s working capital funds following the BCAC IPO.

The BCAC Board was aware of and considered these interests to the extent such interests existed at the time, among other matters, in approving the Business Combination Agreement and in recommending that the Business Combination be approved by the stockholders of BCAC.

 

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.

 

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Under the rules of Nasdaq, brokers who hold shares in “street name” for a beneficial owner of those shares typically have the authority to vote in their discretion on “routine” proposals when they have not received instructions from beneficial owners. However, brokers are not permitted to exercise their voting discretion with respect to the approval of matters that Nasdaq determines to be “non-routine” without specific instructions from the beneficial owner. It is expected that all proposals to be voted on at the Stockholders’ Meeting are “non-routine” matters. Broker non-votes occur when a broker or nominee is not instructed by the beneficial owner of shares to vote on a particular proposal for which the broker does not have discretionary voting power.

If you are a BCAC stockholder holding your shares in “street name” and you do not instruct your broker, bank or other nominee on how to vote your shares, your broker, bank or other nominee will not vote your shares on the Business Combination Proposal, the Charter Proposals, the Director Election Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal, the ESPP Proposal or the Adjournment Proposal. Such broker non-votes will be the equivalent of a vote “AGAINST” the Charter Proposals, but will have no effect on the vote count for such other Proposals.

 

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.

If you are a BCAC stockholder that attends the Stockholders’ Meeting virtually and fails to vote on the Charter Approval Proposal, your failure to vote will have the same effect as a vote “AGAINST” such proposal.

If you are a BCAC stockholder that attends the Stockholders’ Meeting virtually and fails to vote on the Business Combination Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal, the ESPP Proposal and the Adjournment Proposal, your failure to vote will have no effect on the Business Combination Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal, the ESPP Proposal or the Adjournment Proposal.

 

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” each of the Proposals presented at the Stockholders’ Meeting.

 

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/2022 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.

 

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If you are a stockholder of record of BCAC and you choose to send a written notice or to mail a new proxy, you must submit your notice of revocation or your new proxy to BCAC, 280 Park Avenue, Suite 43W, New York, NY 10017 and it must be received at any time before the vote is taken at the Stockholders’ Meeting. Any proxy that you submitted may also be revoked by submitting a new proxy by mail, or online or by telephone, not later than 11:59 p.m. prevailing Eastern Time on July 26, 2022, or by voting at the Stockholders’ Meeting. Simply attending the Stockholders’ Meeting will not revoke your proxy. If your shares are held in “street name” or are in a margin or similar account, you should contact your broker for information on how to change or revoke your voting instructions, and must follow the directions you receive from your broker, bank or other nominee in order to change or revoke your vote.

 

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:

Stockholders may call toll free: (800) 662-5200

Banks and Brokers may call collect: (800) 662-5200

bcac.info@investor.morrowsodali.com

You may also obtain additional information about BCAC from documents filed with the SEC by following the instructions in the section entitled “Where You Can Find More Information.” If you are a holder of Public Shares and you intend to seek redemption of your Public Shares, you will need to deliver your shares of BCAC Common Stock (either physically or electronically) to BCAC’s transfer agent at the address below prior to the vote at the Stockholders’ Meeting. If you have questions regarding the certification of your position or delivery of your stock, please contact:

Continental Stock Transfer & Trust Company

1 State Street, 30th Floor

New York, New York 10004

 

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SUMMARY

This summary highlights selected information included in this proxy statement/prospectus and does not contain all of the information that may be important to you. You should read this entire document and its annexes and the other documents to which we refer before you decide how to vote. Each item in this summary includes a page reference directing you to a more complete description of that item.

The Business Combination and the Business Combination Agreement

The terms and conditions of the Business Combination are contained in the Business Combination Agreement, which is attached as Annex A to this proxy statement/prospectus. We encourage you to read the Business Combination Agreement carefully, as it is the legal document that governs the Business Combination.

If the Business Combination Agreement is approved and adopted and the Business Combination is subsequently completed, Merger Sub will merge with and into Apexigen with Apexigen surviving the Merger as a wholly owned subsidiary of BCAC. At the Closing, BCAC will be renamed as Apexigen, Inc.

Merger Consideration

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 options to purchase shares of common stock of Apexigen outstanding immediately prior to the Effective Time, divided by (b) $10.00.

At the Effective Time:

 

   

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 Aggregate Closing Merger Consideration will be issued to holders of Apexigen securities at the Closing in accordance with the Business Combination Agreement. The portion of the Aggregate Closing Merger

 

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Consideration issuable to any person by virtue of the Merger will be calculated on an aggregate basis with respect to all shares of capital stock of Apexigen held of record by such person immediately prior to the Effective Time, and after such aggregation, any fractional share of BCAC Common Stock that would otherwise be issuable to such person following such aggregation will be rounded up to a whole share of BCAC Common Stock.

The total number of shares of BCAC Common Stock expected to be issued to holders of Apexigen capital stock in connection with the Closing (after giving effect to the net exercise or conversion of outstanding equity awards of Apexigen and Apexigen Warrants) is 18,104,074 shares, which will represent approximately 68.2% of the total number of shares of Combined Company common stock outstanding immediately following consummation of the Business Combination (assuming no additional redemptions, other than the April Partial Redemption, by Public Stockholders and no exercises of BCAC warrants).

Ownership of the Combined Company

As of June 27, 2022, the Record Date, there were 6,746,092 shares of BCAC Common Stock issued and outstanding and one holder of record of BCAC Common Stock.

After giving effect to the Business Combination (assuming no Public Shares of BCAC have been redeemed and no BCAC Warrants have been exercised), we expect that there will be approximately 26,502,166 shares of Combined Company common stock outstanding (after giving effect to the net exercise or conversion of outstanding equity awards of Apexigen and Apexigen Warrants) consisting of (i) 1,627,000 shares held by the Sponsor, (ii) 18,104,074 shares issued to holders of Apexigen securities, (iii) 1,502,000 shares held by the PIPE Investors pursuant to the Subscription Agreements, (iv) 150,000 shares held by Lincoln Park pursuant to the Lincoln Park Purchase Agreement, (v) 5,061,592 shares held by BCAC’s Public Stockholders, and (vi) 57,500 shares held by the Representative.

After giving effect to the Business Combination (assuming that Public Stockholders holding 5,061,592 shares of outstanding BCAC Common Stock exercise their Redemption Rights (representing the maximum redemptions) and no BCAC warrants have been exercised), we expect that there will be approximately 20,980,574 shares of Combined Company common stock outstanding (after giving effect to the net exercise or conversion of outstanding equity awards of Apexigen and Apexigen Warrants), consisting of (i) 1,167,000 shares held by the Sponsor, (ii) 18,104,074 shares issued to holders of Apexigen securities, (iii) 1,502,000 shares held by the PIPE Investors pursuant to the Subscription Agreements, (iv) 150,000 shares held by Lincoln Park pursuant to the Lincoln Park Purchase Agreement, and (v) 57,500 shares held by the Representative.

All shares issued as merger consideration in the Business Combination will be freely tradable without registration under the Securities Act and without restriction by persons other than our “affiliates” (as defined under Rule 144 of the Securities Act (“Rule 144”)), including our directors, executive officers and other affiliates.

The numbers of shares set forth above are based on a number of assumptions, including that neither BCAC nor Apexigen issue any additional equity securities prior to the Business Combination. If the actual facts differ from our assumptions, the numbers of shares set forth above will be different. See “Unaudited Pro Forma Condensed Combined Financial Information.”

Recommendation of the BCAC Board

The BCAC Board unanimously determined that the Business Combination Agreement and the transactions contemplated thereby, including the Merger, were advisable, fair to, and in the best interests of, BCAC and its stockholders. Accordingly, the BCAC Board unanimously recommends that its stockholders vote “FOR” each of the Business Combination Proposal, the Charter Proposals, the Director Election Proposal, the Nasdaq Proposal,

 

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the Equity Incentive Plan Proposal, the ESPP Proposal and the Adjournment Proposal. See “Meeting of BCAC’s Stockholders-Recommendation of BCAC Board of Directors” and “Background of the Business Combination-The BCAC Board’s Reasons for Approval of the Business Combination.”

The Stockholders’ Meeting

The Stockholders’ Meeting of BCAC stockholders will be held on July 27, 2022, at, 11:00 a.m. Eastern Time, in virtual format. At the Stockholders’ Meeting, BCAC is asking holders of BCAC Common Stock to consider and vote upon the following proposals:

 

   

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;

 

   

The Charter Proposals-To consider and vote upon a proposal to adopt the Proposed Charter, in the form attached hereto as Annex B;

 

   

The Director Election Proposal-To consider and vote upon a proposal to elect eight 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;

 

   

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;

 

   

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;

 

   

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;

 

   

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.

You will be entitled to vote or direct votes to be cast at the Stockholders’ Meeting if you owned shares of BCAC Common Stock at the close of business on June 27, 2022, the Record Date. You are entitled to one vote for each share of BCAC Common Stock that you owned as of the close of business on the Record Date. If your shares are held in “street name” or are in a margin or similar account, you should contact your broker, bank, or other nominee to ensure that votes related to the shares you beneficially own are properly counted. As of the Record Date, there were 6,746,092 shares of BCAC Common Stock outstanding, of which 5,061,592 were Public Shares, 1,437,500 were Founder Shares, and 247,000 were shares of BCAC Common Stock issued as constituent securities of the units issued in the Private Placement to Sponsor.

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

 

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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 the Record Date, 3,373,047 shares of BCAC Common Stock would be required to achieve a quorum.

The approval of each of the Business Combination Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal, the ESPP Proposal and the Adjournment Proposal, if presented, requires the affirmative vote (in person or by proxy) of the holders of a majority of the shares of BCAC Common Stock entitled to vote thereon and actually cast at the Stockholders’ Meeting, voting as a single class. Accordingly, a stockholder’s failure to vote by proxy or to vote in person (which would include presence at a virtual meeting) at the Stockholders’ Meeting, as well as an abstention from voting and a broker non-vote with regard to each of the Business Combination Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal, the ESPP Proposal or the Adjournment Proposal, if presented, will have no effect on such proposals.

The approval of the Charter Proposals requires the affirmative vote (in person or by proxy) of the holders of a majority of the shares of BCAC Common Stock entitled to vote thereon, voting as a single class. Accordingly, a stockholder’s failure to vote by proxy or to vote in person (which would include presence at a virtual meeting) at the Stockholders’ Meeting, as well as an abstention from voting and a broker non-vote with regard to the Charter Proposals, will have the same effect as a vote “AGAINST” such proposal.

The approval of the Director Election Proposal requires the affirmative vote (in person or by proxy) of the holders of a plurality of the outstanding shares of BCAC Common Stock entitled to vote and actually cast thereon at the Stockholders’ Meeting. Directors are elected by a plurality of all of the votes cast by such stockholders present in person (which would include presence at a virtual meeting) or represented by proxy at the Stockholders’ Meeting and entitled to vote thereon, which means that the eight director nominees who receive the most affirmative votes will be elected. Stockholders may not cumulate their votes with respect to the election of directors. Accordingly, a stockholder’s failure to vote by proxy or to vote in person (which would include presence at a virtual meeting) at the Stockholders’ Meeting, as well as an abstention from voting and a broker non-vote with regard to election of directors, will have no effect on the election of directors.

Consummation of the Business Combination is conditioned on the approval of the Business Combination Proposal, the Charter Proposals, the Director Election Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal and the ESPP Proposal at the Stockholders’ Meeting, subject to the terms of the Business Combination Agreement. The Business Combination is not conditioned on the approval of the Adjournment Proposal. If the Business Combination Proposal is not approved, the other proposals (except the Adjournment Proposal) will not be presented to the stockholders for a vote.

The Sponsor has agreed to vote its shares of common stock in favor of each of the Proposals presented at the Stockholders’ Meeting.

BCAC Conflicts of Interest

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. These interests include, among other things:

 

   

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

 

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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 $14,020,800 based upon the closing price of $10.16 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 $2,519,400 based upon the closing price of $10.20 per unit on the Nasdaq on June 30, 2022.

 

   

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 expenses incurred by them in connection with certain activities on BCAC’s behalf, such as identifying and investigating possible business targets and business combinations. However, if BCAC fails to consummate a business combination within the Completion Window, they will not have any claim against the Trust Account for reimbursement. Accordingly, BCAC may not be able to reimburse these expenses if the Business Combination or another business combination is not consummated within the Completion Window. As of the date of this prospectus, there were no out-of-pocket expenses incurred by BCAC’s directors, officers or their affiliates that have not otherwise been reimbursed from BCAC’s working capital funds following the BCAC IPO. Additionally, the Sponsor is entitled to $10,000 per month for office space, utilities, administrative and support services provided to BCAC’s management team, which commenced on January 28, 2021 and will continue through the earlier of consummation of the Business Combination and BCAC’s liquidation.

 

   

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.

 

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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.

There will be no finder’s fees, reimbursements or cash payments made by BCAC to the Sponsor or BCAC’s officers or directors, or any of BCAC’s or its officers’ or directors’ affiliates, for services rendered to BCAC prior to or in connection with the completion of the Business Combination, other than payment of the amount

 

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described above for office space, utilities, administrative and support services, and repayments of the Additional Contributions and any Working Capital Notes by our Sponsor or affiliates of our Sponsor to fund working capital deficiencies or finance transaction costs in connection with an initial business combination, which Working Capital Notes will be repayable by BCAC upon Closing. The Sponsor, in its discretion, may in lieu of having the Working Capital Notes repaid upon the Closing, instead convert the Working Capital Notes into units of BCAC, at a price of $10.00 per unit, upon the Closing, provided that the maximum amount that may be converted is no more than $1,500,000. The Sponsor and BCAC’s officers and directors or any of their respective affiliates will also be reimbursed for any out-of-pocket expenses incurred in connection with BCAC’s formation, the BCAC IPO and activities on BCAC’s behalf such as identifying potential target businesses and performing due diligence on suitable business combinations. There is no cap or ceiling on the reimbursement of out-of-pocket expenses incurred by such persons in connection with activities on our behalf. As of the date of this prospectus, the Sponsor had not incurred any out-of-pocket expenses in connection with the Business Combination that, as of such date, had not been reimbursed by BCAC from BCAC’s working capital funds following the BCAC IPO.

The BCAC Board was aware of and considered these interests to the extent such interests existed at the time, among other matters, in approving the Business Combination Agreement and in recommending that the Business Combination be approved by the stockholders of BCAC. See “Meeting of BCAC Stockholders- Recommendation of BCAC Board of Directors.”

Appraisal Rights

Holders of BCAC Common Stock and BCAC warrants are not entitled to appraisal rights in connection with the Business Combination.

Under the DGCL, however, holders of Apexigen capital stock may be entitled to appraisal rights in connection with the Business Combination. Apexigen stockholders who neither vote in favor of nor consent in writing to the Merger and who otherwise comply with Section 262 and other applicable provisions of the DGCL will be entitled to exercise rights to seek appraisal of the fair value of their shares of Apexigen capital stock, as determined by the Delaware Court of Chancery, if the Merger is completed. The “fair value” of such dissenting shares of Apexigen capital stock as determined by the Delaware Court of Chancery may be more or less than, or the same as, the value of the consideration that such stockholder would otherwise be entitled to receive under the Business Combination Agreement. Any Apexigen stockholder who wishes to preserve appraisal rights must so advise Apexigen by submitting a demand for appraisal within the period prescribed by Section 262 of the DGCL after receiving a notice from Apexigen or BCAC that appraisal rights are available, and must otherwise precisely follow the procedures prescribed by Section 262 of the DGCL Any shares of Apexigen capital stock held by such Apexigen stockholder immediately prior to the Effective Time who shall have properly demanded appraisal for his, her or its shares in accordance with the DGCL will not be converted into the merger consideration, unless such Apexigen stockholder fails to perfect, withdraws, or otherwise loses his, her or its right to appraisal and payment under the DGCL. If such Apexigen stockholder fails to perfect, withdraws or otherwise loses his, her or its appraisal rights, each share of Apexigen capital stock held by such Apexigen stockholder will be deemed to have been converted as of the Effective Time into a right to receive the merger consideration. Failure to follow any of the statutory procedures set forth in Section 262 of the DGCL will result in the loss or waiver of appraisal rights under Delaware law. In view of the complexity of Section 262 of the DGCL, Apexigen stockholders who may wish to pursue appraisal rights should consult their legal and financial advisors.

The Business Combination Agreement

Representations, Warranties and Covenants

The parties to the Business Combination Agreement have made customary representations, warranties and covenants therein, including, among others, covenants (i) with respect to the conduct of the business of BCAC

 

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and Apexigen and their respective subsidiaries prior to the Closing, (ii) providing for BCAC and Apexigen to use reasonable best efforts to obtain all necessary regulatory approvals, (iii) providing for BCAC and Apexigen to cooperate in the preparation of the registration statement, of which this proxy statement/prospectus forms a part, and a consent solicitation statement to be distributed by Apexigen to its stockholders, and (iv) requiring that BCAC and Apexigen will not solicit or negotiate with third parties regarding alternative transactions and will comply with certain related restrictions and will cease discussions regarding alternative transactions. Additionally, BCAC agreed to include in this proxy statement/prospectus a recommendation of the BCAC Board to BCAC stockholders that such stockholders approve the proposals included herein (the “BCAC Board Recommendation”). The BCAC Board is permitted to change the BCAC Board Recommendation (such change, a “Modification in Recommendation”) if the BCAC Board determines in good faith, after consultation with its outside legal counsel, that in response to an intervening event specified in the Business Combination Agreement, the failure to make such a Modification in Recommendation would be inconsistent with its fiduciary duties under applicable law.

Conditions to the Merger

Mutual Conditions to Closing

The obligations of BCAC, Merger Sub and Apexigen to consummate the Merger are subject to the satisfaction or waiver of the following conditions: (i) the requisite approvals of BCAC and Apexigen stockholders having been obtained; (ii) the registration statement of which this proxy statement/prospectus forms a part having become effective under the Securities Act and no stop order having been issued with respect thereto; (iii) there not being in force any governmental order or law enjoining or prohibiting, the consummation of the Merger; and (iv) BCAC having at least $5,000,001 of net tangible assets after deducting the amount required to satisfy any redemptions by BCAC stockholders in connection with the Closing.

BCAC Conditions to Closing

The obligations of BCAC and Merger Sub to consummate the Merger are subject to the satisfaction or waiver of the following additional conditions: (i) the accuracy of the representations and warranties of Apexigen as determined in accordance with the Business Combination Agreement; (ii) the performance in all material respects of each of the covenants required by the Business Combination Agreement to be performed by Apexigen as of or prior to the Closing; (iii) the delivery by Apexigen to BCAC of a customary officer’s certificate, dated as of the date of the Closing and signed by an officer of Apexigen, certifying the satisfaction of certain conditions specified in the Business Combination Agreement; (iv) there shall not have occurred a material adverse effect with respect to Apexigen between the date of the Business Combination Agreement and the date of the Closing; (v) the delivery by Apexigen to BCAC a certification that shares of Apexigen capital stock are not “U.S. real property interests” in accordance with sections 897 and 1445 of the Code, together with a notice to the IRS in accordance with the provisions of Section 1.897-2(h)(2) of the Treasury Regulations, (vi) the Subscription Agreements being in full force and effect; and (vii) the Lincoln Park Purchase Agreement being in full force and effect.

Apexigen Conditions to Closing

The obligations of Apexigen to consummate the Merger are subject to the satisfaction or waiver of the following additional conditions: (i) the accuracy of the representations and warranties of BCAC as determined in accordance with the Business Combination Agreement; (ii) the performance in all material respects of each of the covenants required by the Business Combination Agreement to be performed by BCAC as of or prior to the Closing; (iii) the delivery by BCAC to Apexigen of a customary officer’s certificate, dated as of the date of the Closing and signed by an officer of BCAC, certifying the satisfaction of certain conditions specified in the Business Combination Agreement; (iv) there shall not have occurred a material adverse effect with respect to

 

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Apexigen between the date of the Business Combination Agreement and the date of the Closing; (v) the resignation, effective as of the Closing, of any directors and officers of BCAC that are not identified as the initial post-Closing directors and officers of the Combined Company; (vi) the shares BCAC Common Stock to be issued in connection with the Merger having been approved for listing on Nasdaq, subject only to notice of issuance thereof; (vii) the Subscription Agreements being in full force and effect; and (viii) the Lincoln Park Purchase Agreement being in full force and effect.

Termination

The Business Combination Agreement may be terminated and the Business Combination abandoned by (i) mutual written consent of BCAC and Apexigen, (ii) either BCAC or Apexigen if the Business Combination is not consummated on or before October 31, 2022, provided that BCAC or Apexigen, as applicable, will not be entitled to exercise such termination right if it is in breach of the Business Combination Agreement and fails to satisfy any closing condition at such time, (iii) either BCAC or Apexigen if consummation of the Business Combination is permanently enjoined or prohibited by the terms of a final, non-appealable order, decree or ruling of a governmental entity or a statute, rule or regulation, (iv) either BCAC or Apexigen if the requisite approval of BCAC stockholders is not obtained at the Stockholders’ Meeting, (v) BCAC if the requisite approval of Apexigen stockholders of the Business Combination by written consent is not obtained ten business days prior to the Stockholders’ Meeting, (vi) either BCAC or Apexigen if the other party has breached any of its representations, warranties or covenants, such that the conditions to Closing would not be satisfied at the Closing, and has not cured such breach within 30 days of notice from the other party of its intent to terminate, provided that the terminating party is itself not in material breach of the Business Combination Agreement at such time, or (vii) by BCAC if Apexigen fails to deliver the Stockholder Support Agreement signed by the Key Apexigen Stockholders.

Effect of Termination

In the event of the termination of the Business Combination Agreement, the Business Combination Agreement will become void and have no effect, without any liability on the part of any party thereto (other than liability of Apexigen, BCAC or Merger Sub, as the case may be, for any willful and material breach of the Business Combination Agreement occurring prior to such termination), other than with respect to certain exceptions contemplated by the Business Combination Agreement and the confidentiality agreement between BCAC and Apexigen that will survive the termination of the Business Combination Agreement.

Other Agreements

Sponsor Support Agreement

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) vote in favor of or consent to the Business Combination Agreement, the Merger, and any other transactions contemplated thereby or under any other agreements executed and delivered in connection therewith, (ii) comply with the lock-up provisions set forth therein and in the Letter Agreement previously entered into between BCAC and the Sponsor dated January 28, 2021, and (iii) forfeit certain shares of BCAC Common Stock held by Sponsor in the event the BCAC Related Funds Amount at Closing is less than $20,000,000. See “Other Agreements-Sponsor Support Agreement.”

As of June 27, 2022, the Record Date, the Sponsor was entitled to vote BCAC Voting Shares. Such shares currently constitute approximately 24.1% of the outstanding shares of BCAC’s common stock.

 

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Apexigen Stockholder Support Agreement

Concurrently with the execution of the Business Combination Agreement BCAC, the Company and the Key Apexigen Stockholders entered into the Stockholder Support Agreement providing that, among other things, Key Apexigen Stockholders holding at least the shares of Apexigen capital stock sufficient to deliver the requisite approval will vote their shares of Apexigen capital stock in favor of the Business Combination Agreement, the Merger and any other transactions contemplated thereby or under any other agreements executed and delivered in connection therewith.

Registration Rights and Lock-Up Agreement

Concurrently with the execution of the Business Combination Agreement, BCAC entered into the Registration Rights and Lock-Up Agreement with certain stockholders of Apexigen (the “Registration Rights Holders”) providing that, among other things, within 45 days after the Closing, the Combined Company will be required to file a shelf registration statement pursuant to Rule 415 of the Securities Act and use reasonable best efforts to cause such registration statement to be declared effective as soon as practicable thereafter. In addition, the Registration Rights Holders will have certain demand and “piggyback” registration rights.

Subject to certain exceptions, the Registration Rights Holders, and the Sponsor with respect to the Founder Shares will, subject to limited exceptions, be subject to a lock-up on their shares of Combined Company common stock for 180 days after the date of the Closing. See “Other Agreements-Registration Rights Agreement.”

Subscription Agreements

Concurrently with the execution of the Business Combination Agreement, BCAC entered into the Subscription Agreements with certain PIPE Investors and may enter into additional Subscription Agreements with other PIPE Investors prior to the Closing. Pursuant to the Subscription Agreements, the PIPE Investors 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 for a purchase price of $10.00 per unit, or an aggregate of $15,020,000, in private placements. Each PIPE Unit consists of one share of BCAC Common Stock and one-half of one warrant. As of June 30, 2022, the closing price on Nasdaq of the BCAC units was $10.20 per unit and the closing price of the Common Stock was $10.16 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. If the 1,502,000 shares of BCAC Common Stock to be issued to the PIPE Investors were currently outstanding, such shares would have an aggregate market value of $15,260,320 based upon the closing price of $10.16 per share of BCAC Common Stock on Nasdaq on June 30, 2022. See “Other Agreements-Subscription Agreement.

Purchase Agreement and Registration Rights Agreement

Concurrently with the execution of the Business Combination Agreement, BCAC, Apexigen, and Lincoln Park entered into (a) the Lincoln Park Purchase Agreement, pursuant to which the Combined Company will have the right to direct Lincoln Park to purchase from the Combined Company an aggregate of up to $50,000,000 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, and (b) a Registration Rights Agreement, providing for the registration of the shares of BCAC Common Stock and Combined Company common stock issuable in respect of the Lincoln Park Purchase Agreement. On the date of Closing, BCAC will issue to Lincoln Park 150,000 shares of BCAC Common Stock. Additionally, 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

 

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such shares, provided, that in no event shall the amount of such shares exceed 500,000. See “Other Agreements-Lincoln Park Purchase Agreement and Registration Rights Agreement.

Nasdaq Listing

Our public units (“BCAC units”), shares of BCAC Common Stock and Warrants to purchase shares of BCAC Common Stock are currently listed on Nasdaq under the symbols “BCACU,” “BCAC” and “BCACW,” respectively. We intend to apply to continue the listing of the Combined Company common stock and the Warrants of the Combined Company to purchase shares of Combined Company common stock on Nasdaq under the symbols “APGN” and “APGNW,” respectively, upon the Closing.

Comparison of Stockholders’ Rights

There are certain differences in the rights of BCAC stockholders prior to the Business Combination and after the Business Combination. See “Comparison of Stockholders’ Rights.

Summary Risk Factors

You should consider all the information contained in this proxy statement/prospectus in deciding how to vote for the Proposals presented in this proxy statement/prospectus. In particular, you should consider the risk factors described under “Risk Factors.” Such risks include, but are not limited to:

Risks related to Apexigen’s business and industry, including that:

 

   

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 Food and 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.

 

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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.

Risks relating to the Business Combination, including that:

 

   

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.

Risks relating to redemption, including that:

 

   

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.

 

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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.

Information about BCAC

BCAC is a blank check company formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization, or similar business combination with one or more businesses. BCAC Common Stock is listed on Nasdaq under the symbol “BCAC.” The publicly held BCAC warrants are listed on Nasdaq under the symbol “BCACW.” BCAC units are listed on Nasdaq under the symbol “BCACU.” BCAC currently maintains its executive offices at 280 Park Avenue, Suite 43W, New York, NY 10017 and BCAC’s telephone number is (646) 643-6716.

Information about Apexigen

Apexigen is a clinical-stage biopharmaceutical company focused on discovering and developing a new generation of antibody therapeutics for oncology.

Apexigen Wholly Owned Pipeline: Apexigen’s wholly owned pipeline is focused on innovative antibody-based therapeutics for oncology, with an emphasis on new immuno-oncology agents that may harness the patient’s immune system to combat and eradicate cancer. The company’s pipeline of immuno-oncology therapeutic candidates is led by sotigalimab, which is currently in Phase 2 clinical development, and also includes multiple preclinical programs.

 

   

Sotigalimab: a CD40 agonist antibody with two key features. Sotiga is designed to specifically bind to the CD40L signaling. In addition, Apexigen engineered a mutation into the fragment crystallizable (Fc) region to increase binding to FcãRIIb to increase cross-linking and agonistic potency and eliminate FcãRIIIa 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.

 

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Apexigen plans to consult with the FDA about a potential registrational path in post-anti-PD-(L)1 melanoma in mid-2022.

 

   

APX601: an anti-TNFR2 antagonist antibody designed to reverse immune suppression in the tumor microenvironment and unleash immune-mediated tumor killing activity through unique mechanisms of action. Based on APX601’s mechanisms of action, Apexigen believes APX601 can deplete and inactivate TNFR2-expressing Tregs, reverse myeloid-mediated T cell suppression and directly kill TNFR2-expressing tumor cells. In preclinical mouse models, APX601 shows anti-tumor activity and is well-tolerated. Apexigen plans to develop APX601 for the treatment of multiple tumor indications of unmet medical need.

Partnered Programs: Apexigen has out-licensed five programs for the development of product candidates that were discovered using the APXiMAB platform. One of these out-licensed programs has yielded a product that is commercially available. The other out-licensed product candidates are advancing in clinical development.

APXiMAB discovery platform: This platform has enabled Apexigen and its licensing partners to discover antibodies for clinical development against a variety of molecular targets, including targets that are difficult to drug with conventional antibody technologies.

 

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MARKET PRICE AND DIVIDEND INFORMATION

BCAC

BCAC Common Stock is listed on Nasdaq under the symbol “BCAC.” The publicly held BCAC warrants are listed on Nasdaq under the symbol “BCACW.” BCAC units are listed on Nasdaq under the symbol “BCACU.”

On March 17, 2022, the last trading day before announcement of the execution of the Business Combination Agreement, the closing price of shares of BCAC Common Stock, BCAC units and public BCAC warrants on Nasdaq was $10.05, $10.19, and $0.20, respectively. As of June 30, 2022, the closing price of shares of BCAC Common Stock, BCAC units and public BCAC warrants on Nasdaq was $10.16, $10.20 and $0.11 respectively.

Holders of BCAC Common Stock, BCAC units and public BCAC warrants should obtain current market quotations for their securities. The market prices of BCAC’s securities could vary at any time before the Business Combination.

Holders

As of June 27, 2022, the Record Date, there were 2 holders of record of BCAC units, 6 holders of record of BCAC Common Stock and 1 holder of record of public BCAC warrants. The number of holders of record does not include a substantially greater number of “street name” holders or beneficial holders whose BCAC units, Public Shares and public BCAC warrants are held of record by banks, brokers, and other financial institutions.

Dividend Policy

BCAC has not paid any cash dividends on the BCAC Common Stock to date and does not intend to pay cash dividends prior to the completion of the Business Combination. The payment of cash dividends in the future will be dependent upon the Combined Company’s revenues and earnings, if any, capital requirements and general financial condition subsequent to completion of the Business Combination. The payment of any cash dividends subsequent to the Business Combination will be within the discretion of the Combined Company Board at such time. The Combined Company’s ability to declare dividends may also be limited by restrictive covenants pursuant to any debt financing agreements.

Apexigen

The historical market price for Apexigen’s capital stock is not provided because there is no public market for Apexigen’s capital stock.

See “Apexigen’s Management’s Discussion and Analysis of Financial Condition and Results of Operations.”

 

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SUMMARY HISTORICAL FINANCIAL INFORMATION OF BCAC

The following information is only a summary and should be read in conjunction with BCAC’s financial statements and related notes contained elsewhere in this proxy statement/prospectus and information discussed under “BCAC Management’s Discussion and Analysis of Financial Condition and Results of Operations.” The historical results included below and elsewhere in this proxy statement/prospectus are not indicative of BCAC’s future performance.

The summary statements of operations data for the period from May 27, 2020 (inception) through December 31, 2020 and for the year ended December 31, 2021 and the summary balance sheet data as of December 31, 2020 and 2021 are each derived from BCAC’s audited financial statements appearing elsewhere in this proxy statement/prospectus. The summary statement of operations data for the three months ended March 31, 2021 and 2022, and the summary balance sheet data as of March 31, 2022 are derived from BCAC’s unaudited condensed financial statements appearing elsewhere in this proxy statement/prospectus. The BCAC unaudited interim financial statements were prepared on the same basis as its audited financial statements. The historical results are not necessarily indicative of the results to be expected in the future.

 

    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
 

 

 

   

 

 

   

 

 

   

 

 

 

 

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     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

 

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SUMMARY HISTORICAL FINANCIAL INFORMATION OF APEXIGEN

The following information is only a summary and should be read in conjunction with Apexigen’s financial statements and related notes contained elsewhere in this proxy statement/prospectus and information discussed under “Apexigen’s Management’s Discussion and Analysis of Financial Condition and Results of Operations.” The historical results included below and elsewhere in this proxy statement/prospectus are not indicative of Apexigen’s future performance.

The summary statements of operations data for the years ended December 31, 2020 and 2021 and the summary balance sheet data as of December 31, 2020 and 2021 are each derived from Apexigen’s audited financial statements appearing elsewhere in this proxy statement/prospectus. The summary statement of operations data for the three months ended March 31, 2021 and 2022, and the summary balance sheet data as of March 31, 2022 are derived from Apexigen’s unaudited condensed financial statements appearing elsewhere in this proxy statement/prospectus. The Apexigen unaudited interim condensed financial statements were prepared on the same basis as its audited financial statements. The historical results are not necessarily indicative of the results to be expected in the future.

 

     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

 

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SELECTED UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION

The following selected unaudited pro forma condensed combined financial data (the “selected pro forma information”) gives effect to the Apexigen Business Combination and other events contemplated by the Business Combination Agreement as described in the section entitled “Unaudited Pro Forma Condensed Combined Financial Information” included in this proxy statement/prospectus. On March 17, 2022, BCAC executed the Business Combination Agreement. Pursuant to the terms of the Business Combination Agreement, BCAC will acquire Apexigen through the statutory merger of the Project Barolo Merger Sub with and into Apexigen, with Apexigen surviving the merger as a wholly owned subsidiary of BCAC. The Aggregate Closing Merger Consideration of 21,568,559 shares will be calculated as the Aggregate Closing Merger Consideration Value of $215.7 million divided by $10.00 per share. At the effective time of the Apexigen Business Combination, each share of Apexigen Common Stock will be canceled and converted into the right to receive a number of shares of BCAC Common Stock equal to the Exchange Ratio, calculated in accordance with the terms of the Business Combination Agreement. The Company currently estimates the Exchange Ratio to be approximately 0.1026.

The Merger is expected to be accounted for as a reverse recapitalization in accordance with GAAP because Apexigen has been determined to be the accounting acquirer under all redemption scenarios presented. The unaudited pro forma condensed combined balance sheet as of March 31, 2022 combines the historical unaudited condensed balance sheet of Apexigen with the historical unaudited condensed balance sheet of BCAC on a pro forma basis as if the Merger and the other events contemplated by the Business Combination Agreement, summarized below, had been consummated on March 31, 2022. The unaudited pro forma condensed combined statement of operations for the three months ended March 31, 2022 combines the historical unaudited condensed statement of operations of Apexigen for the three months ended March 31, 2022 and the historical unaudited condensed statement of operations of BCAC for the three months ended March 31, 2022, giving effect to the transaction as if the Merger and other events contemplated by the Business Combination Agreement had been consummated on January 1, 2021. The unaudited pro forma condensed combined statement of operations for the year ended December 31, 2021 combines the historical audited statement of operations of BCAC for the year ended December 31, 2021, with the historical audited statement of operations of Apexigen for the year ended December 31, 2021, giving effect to the transaction as if the Merger and other events contemplated by the Business Combination Agreement had been consummated on January 1, 2021.

The selected pro forma information has been derived from, and should be read in conjunction with, the unaudited pro forma condensed combined financial information of the Combined Company appearing elsewhere in this proxy statement/prospectus and the accompanying notes, in the section titled “Unaudited Pro Forma Condensed Combined Financial Information.” The unaudited pro forma condensed combined financial information is derived from, and should be read in conjunction with, the historical financial statements of BCAC and Apexigen and related notes included elsewhere in this proxy statement/prospectus. The selected pro forma information has been presented for informational purposes only and is not necessarily indicative of what the Combined Company’s financial position or results of operations actually would have been had the Merger and the other transactions contemplated by the Business Combination Agreement been completed as of the dates indicated. In addition, the selected pro forma information does not purport to project the future financial position or operating results of the Combined Company. BCAC and Apexigen have not had any historical relationship prior to the Merger. Accordingly, no pro forma adjustments were required to eliminate activities between the companies.

The unaudited pro forma condensed combined financial information has been prepared in accordance with Article 11 of Regulation S-X as amended by the final rule, Release 33-10786 “Amendments to Financial Disclosures about Acquired and Disposed Businesses.” The adjustments reflected in the selected pro forma information have been identified and presented to provide relevant information necessary for an accurate understanding of the Combined Company upon consummation of the Merger, the PIPE Investment, the Lincoln Park Purchase Agreement and other transactions.

 

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During April 2022, BCAC Public Stockholders elected to redeem 688,408 shares at $10.10 per share 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 remained outstanding. The following table presents the selected pro forma information after giving effect to the Merger and other events contemplated by the Business Combination Agreement and the April Partial Redemption, presented under the following four scenarios:

 

   

Assuming No Additional Redemptions: This scenario includes the April Partial Redemption and assumes that no other BCAC Public Stockholders exercise their Redemption Rights with respect to the outstanding BCAC Common Stock and that 5,061,592 shares of BCAC Common Stock remain outstanding after the completion of the Merger.

 

   

Assuming 50% Redemptions: This scenario includes the April Partial Redemption and assumes that holders of an additional 2,530,796 shares, or 50% of the remaining shares outstanding held by BCAC Public Stockholders, will exercise their Redemption Rights for aggregate redemption proceeds of $32.8 million.

 

   

Assuming 75% Redemptions: This scenario includes the April Partial Redemption and assumes that holders of an additional 3,796,194 shares, or 75% of the remaining shares outstanding held by BCAC Public Stockholders, will exercise their Redemption Rights for aggregate redemption proceeds of $45.7 million.

 

   

Assuming Maximum Redemptions: This scenario assumes the April Partial Redemption and assumes that BCAC Public Stockholders holding the remaining 5,061,592 shares of BCAC Common Stock will exercise their Redemption Rights for aggregate redemption proceeds of $58.6 million.

The Business Combination Agreement does not provide for any minimum cash condition.

Under the 50% Redemptions, 75% Redemptions, and Maximum Redemptions scenarios, the pro forma financials assume a $10.20 per share redemption amount. On April 26, 2022, BCAC held a special meeting of its stockholders at which BCAC’s stockholders approved an amendment to BCAC’s Amended and Restated Certificate of Incorporation that extends the date by which BCAC must consummate a business combination transaction from May 2, 2022 on a monthly basis up to November 2, 2022. The Sponsor, or its designees, has agreed to contribute to BCAC as a loan $0.033 for each public share that was not redeemed in the April Partial Redemption for each subsequent calendar month commencing on May 2, 2022, and on the 2nd day of each subsequent month, or portion thereof, that is needed by BCAC to complete an initial business combination from May 2, 2022 (the “Extension Note”). The Extension Note is a non-convertible unsecured promissory note. For purposes of the 50% Redemptions, 75% Redemptions, and Maximum Redemptions scenarios, the $10.20 per share redemption amount assumes that the Closing will take place in July 2022. If the Merger closes subsequent to July 2022, then the Sponsor would be required to loan an additional $0.033 per month for each public share that is not redeemed, and the per share redemption amount will increase by $0.033 per share per month.

 

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The following summarizes the pro forma shares of Combined Company common stock issued and outstanding immediately after the Merger under the four scenarios (after giving effect to the April Partial Redemption):

 

    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” for more information.

(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.

If the actual facts are different than these assumptions, then the amounts and shares outstanding in the unaudited pro forma condensed combined financial information will be different and those changes could be material.

 

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The following summarizes the selected pro forma information under the scenarios presented (after giving effect to the April Partial Redemption):

 

     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  

 

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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

AND RISK FACTOR SUMMARY

Certain statements in this prospectus may constitute “forward-looking statements” for purposes of the federal securities laws. Our forward-looking statements include, but are not limited to, statements regarding our or our management team’s expectations, hopes, beliefs, intentions or strategies regarding the future. In addition, any statements that refer to projections, forecasts or other characterizations of future events or circumstances, including any underlying assumptions, are forward-looking statements. The words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “would” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. Forward-looking statements in this prospectus may include, for example, statements about:

 

   

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;

 

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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.

The forward-looking statements contained in this prospectus are based on our current expectations and beliefs concerning future developments and their potential effects on us. There can be no assurance that future developments affecting us will be those that we have anticipated. These forward-looking statements involve a number of risks, uncertainties (some of which are beyond our control) or other assumptions that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements. These risks and uncertainties include, but are not limited to, those factors described under the section of this prospectus entitled “Risk Factors.” Should one or more of these risks or uncertainties materialize, or should any of our assumptions prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.

 

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RISK FACTORS

In addition to the other information contained in this proxy statement/prospectus, including the matters addressed under the heading “Forward-Looking Statements”, you should carefully consider the following risk factors in deciding how to vote on the proposals presented in this proxy statement/prospectus. The risk factors described below disclose both material and other risks, and are not intended to be exhaustive and are not the only risks facing us. Additional risks not currently known to us or that we currently deem to be immaterial also may materially adversely affect our business, financial condition, results of operations and cash flows in future periods or are not identified because they are generally common to businesses.

Unless the context otherwise requires, all references in this subsection to “we”, “us” or “our” refer to the business of Apexigen prior to the Closing and to the Combined Company following the Closing. The occurrence of one or more of the events or circumstances described in these risk factors, alone or in combination with other events or circumstances, may have a material adverse effect on the business, financial condition, results of operations, cash flows and future prospects of the Combined Company, in which event the market price of the Combined Company’s common stock could decline, and you could lose part or all of your investment.

Risks Related to Apexigen’s Business, Financial Condition, and Need for Additional Capital

We are in the early stages of clinical drug development and have a limited operating history and no products approved for commercial sale, which may make it difficult for you to evaluate our current business and predict our future success and viability.

We are an early clinical-stage biopharmaceutical company with a limited operating history. Apexigen was incorporated and commenced operations in 2010 following a spin-out transaction from its parent company. We have no products approved for commercial sale and have not generated any revenue from commercial product sales. Our operations to date have been limited to performing research and development activities in support of our product development and licensing efforts, hiring personnel, raising capital to support and expand such activities, providing general and administrative support for these operations, developing potential product candidates, conducting preclinical studies and clinical trials, including clinical trials of sotigalimab, our lead product candidate, and our other wholly owned product candidates, and entering into, and performing our obligations under, licensing arrangements that have resulted in additional product candidates in clinical development or commercialization by our licensees. Other than sotigalimab, all of our wholly owned programs are in preclinical or research development. We have not yet demonstrated our ability to successfully complete any large-scale pivotal clinical trials, obtain marketing approvals, manufacture a drug on a commercial scale or arrange for a third party to do so on our behalf, or conduct sales and marketing activities. In addition, only one of our licensees has obtained marketing approvals for product candidates we have out-licensed. As a result, it may be more difficult for you to accurately predict our future success or viability than it could be if we had a longer operating history.

In addition, as a business with a limited operating history, we may encounter unforeseen expenses, difficulties, complications, delays, and other known and unknown factors and risks frequently experienced by early-stage biopharmaceutical companies in rapidly evolving fields. We also would need to transition from a company with a research and development focus to a company capable of supporting commercial activities after approval of any of our product candidates. We have not yet demonstrated an ability to successfully overcome such risks and difficulties, or to make such a transition. If we do not adequately address these risks and difficulties or successfully make such a transition, our business will suffer.

Apexigen has incurred net losses since inception and expects to continue to incur significant net losses for the foreseeable future.

Apexigen has incurred net losses since inception, has not generated any significant revenue to date, and has financed its operations prior to the proposed Business Combination primarily through the issuance of convertible preferred stock, proceeds from collaborative research and development and out-license agreements, and borrowings under a debt arrangement. Apexigen’s net loss was $24.1 million and $28.9 million for the years ended December 31, 2020 and 2021, respectively. Apexigen’s net loss was $6.5 million and $9.0 million for the three months ended March 31, 2021 and 2022, respectively.

 

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As of March 31, 2022, Apexigen had an accumulated deficit of $153.8 million. Apexigen has devoted substantially all of its resources and efforts to date to research and development. Our clinical-stage pipeline currently consists of multiple product candidates, including our lead product candidate, sotigalimab, and our other internal programs are in preclinical or research development. As a result, we expect that it will be several years, if ever, before we generate revenue from product sales. Even if we succeed in receiving marketing approval for and commercializing one or more of our product candidates, we expect that we will continue to incur substantial research and development and other expenses in order to develop and market additional potential products. In addition, for certain of our licensees from whom we are entitled to receive royalty payments if they successfully develop and commercialize any products covered by licenses we have with them, there is no guarantee that their product development and commercialization will lead to any such payments even if any such product candidates receive regulatory approval for commercial sale, including Beovu, which is commercialized by Novartis, for which Apexigen has received sales-based royalties that are currently fully constrained and recorded as deferred revenue on Apexigen’s balance sheet, as discussed below.

Our financial statements for the year ended December 31, 2021 and for the three months ended March 31, 2022, included elsewhere in this proxy statement/prospectus have been prepared assuming we will continue as a going concern. As a development stage company, we expect to incur significant and increasing losses until regulatory approval is granted for sotigalimab, our lead product candidate. Regulatory approval is not guaranteed and may never be obtained. As a result, these conditions raise substantial doubt about our ability to continue as a going concern.

We expect to continue to incur significant expenses and increasing operating losses for the foreseeable future after the Business Combination. The net losses we incur may fluctuate significantly from quarter-to-quarter such that a period-to-period comparison of our results of operations may not be a good indication of our future performance. The size of our future net losses will depend, in part, on the rate of future growth of our expenses and our ability to generate revenue. Our expected future losses will continue to have an adverse effect on our working capital and our ability to achieve and maintain profitability.

Our ability to generate revenue and achieve profitability depends significantly on our ability to achieve a number of objectives.

Our business depends entirely on the successful development and commercialization of our product candidates. Apexigen currently generates no revenue from commercial sales of any products. Apexigen has no products approved for commercial sale and, after the Business Combination, we do not anticipate generating any revenue from product sales unless and until sometime after we have successfully completed clinical development and received marketing approval for the commercial sale of a product candidate, if ever. In addition, we may not receive significant amounts of royalty revenue, if any, from our licensees for their product candidates if and when such candidates receive regulatory approval for commercial sale and are commercialized, including Beovu, which is commercialized by Novartis, for which Apexigen has received sales-based royalties that are currently fully constrained and recorded as deferred revenue on Apexigen’s balance sheet as discussed below. Our ability to generate revenue and achieve profitability depends significantly on our ability to achieve a number of objectives, including:

 

   

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;

 

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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.

We may never be successful in achieving our objectives and, even if we do, may never generate revenue that is significant or large enough to achieve profitability. If we do achieve profitability, we may not sustain or increase profitability on a quarterly or annual basis. Our failure to become and remain profitable would decrease the value of our company and could impair our ability to maintain or further our research and development efforts, raise additional necessary capital, grow our business, and/or continue our operations.

We will require substantial additional capital to finance our operations. If we are unable to raise such capital when needed, or on acceptable terms, we may be forced to delay, reduce, and/or eliminate one or more of our research and drug development programs or future commercialization efforts.

Developing pharmaceutical products, including conducting preclinical studies and clinical trials, is a very time-consuming, expensive, and uncertain process that takes years to complete. We expect our expenses to increase in connection with our ongoing activities, particularly as we conduct clinical trials of, and seek marketing approval for sotigalimab and our other product candidates. In addition, if we obtain marketing approval for any of our product candidates, we expect to incur significant commercialization expenses related to drug sales, marketing, manufacturing, and distribution. Commencing upon the Closing, we also expect to incur additional costs associated with operating as a public company. Accordingly, we will need to obtain substantial additional funding in order to maintain our continuing operations. If we are unable to raise capital when needed or on acceptable terms, we may be forced to delay, reduce, and/or eliminate one or more of our research and drug development programs or future commercialization efforts. Changing circumstances, some of which may be beyond our control, could cause us to consume capital significantly faster than we currently anticipate, and we may need to seek additional funds sooner than planned.

We plan to continue to use our cash on hand to fund our development of our product candidates and for other research and development activities, working capital, and other general corporate purposes. This may include additional research, hiring additional personnel, capital expenditures, and the costs of operating as a public company. Advancing the development of our current and any future product candidates will require a significant amount of capital. The cash and cash equivalents available to us upon the Closing will not be sufficient to fund all of the actions that are necessary to complete the development of sotigalimab or any of our

 

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other product candidates. We will be required to obtain further funding through public or private equity offerings, sale of shares of our common stock through utilization of our equity line with Lincoln Park, debt financings, partnership, collaborations, and licensing arrangements or other sources, which may dilute our stockholders or restrict our operating activities. In addition, there are certain conditions and limitations on our ability to utilize our $50.0 million equity line with Lincoln Park. After the Closing, we will be required to satisfy various conditions in order to be able to commence purchases by Lincoln Park under the equity line. Once such conditions are satisfied, the Lincoln Park equity line purchases are subject to volume limitations tied to periodic market prices, ownership limitations limiting Lincoln Park from owning more than 4.99% of our common stock, a price floor of $3.00 per share of common stock at which we cannot sell to Lincoln Park any shares of common stock, and other limitations as specified under “Other Agreements—Lincoln Park Purchase Agreement and Registration Rights Agreement.” If any of these conditions are not satisfied or limitations are in effect, we may not be able to utilize all or part of the Lincoln Park equity line, which would have an adverse impact on our ability to satisfy our capital needs and could materially adversely impact our business. Adequate additional financing may not be available to us on acceptable terms, or at all. Our failure to raise capital as and when needed would have a negative impact on our financial condition and our ability to pursue our business strategy.

Risks Related to the Discovery, Development, and Commercialization of Apexigen’s Product Candidates

We are dependent on the success of our product candidates, including our lead product candidate, sotigalimab, which is currently in multiple clinical trials. If we are unable to obtain approval for and commercialize our product candidates for one or more indications in a timely manner, our business will be materially harmed.

Our success is dependent on our ability to timely complete clinical trials and obtain marketing approval for, and then successfully commercialize, our product candidates, including our lead product candidate, sotigalimab, for one or more indications. Our product candidates are in the early stages of development and we are investing the majority of our efforts and financial resources in the research and development of sotigalimab for multiple indications, both directly through our own efforts and indirectly through clinical collaboration arrangements, including investigator- and cooperative group-sponsored trials (“ISTs”). Our product candidates will require additional clinical development, preclinical and manufacturing activities, marketing approval from government regulators, substantial investment, and significant marketing efforts before we generate any revenue from product sales. We are not permitted to market or promote any product candidates, in a jurisdiction before receiving marketing approval from the relevant regulatory authority, including, for example, the Food and Drug Administration (“FDA”) for marketing in the United States and the European Medicines Agency (“EMA”) for marketing in the European Union, and we may never receive such marketing approvals.

The success of our product candidates will depend on numerous factors, including the following:

 

   

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;

 

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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.

We do not have complete control over many of these factors, including certain aspects of clinical development and the regulatory submission process, including trial design, implementation, and timely provision of data in our collaboration based clinical trials and ISTs; potential threats to our intellectual property rights; and the manufacturing, marketing, distribution, and sales efforts of any future collaborator. If we are unable to achieve one or more of the objectives set forth above, our business will be materially harmed.

Our clinical trials may reveal serious adverse events, toxicities, or other side effects of our current and any future product candidates that result in a safety profile that could inhibit regulatory approval or market acceptance of our product candidates.

In order to obtain marketing approval for our current or any future product candidates, we must demonstrate the safety and efficacy of the product candidate for the relevant clinical indication or indications through preclinical studies and clinical trials as well as additional supporting data. If our product candidates are associated with undesirable side effects in preclinical studies or clinical trials, or have unexpected characteristics, we may need to interrupt, delay, or abandon their development or limit development to more narrow uses or subpopulations in which the undesirable side effects or other characteristics are less prevalent, less severe, or more acceptable from a risk-benefit perspective.

Although we have conducted various preclinical studies and have data from various early-stage clinical trials, we do not know the predictive value of these studies and trials for our future clinical trials, and we cannot guarantee that any positive results in preclinical studies or previous clinical trials will successfully translate to patients in our future clinical trials. It is not uncommon to observe results in clinical trials that are unexpected based on preclinical testing or previous clinical trials, and many product candidates fail in clinical trials despite promising preclinical or early-stage clinical results. Moreover, preclinical and clinical data are often susceptible to varying interpretations and analyses, and many companies that believed their product candidates performed satisfactorily in preclinical studies and clinical trials have nonetheless failed to obtain marketing approval for their products.

While we believe that sotigalimab has been reasonably well tolerated in our clinical trials, subjects have experienced adverse events that have been considered treatment-related. Some of the more common adverse events included fever, chills, fatigue, asthenia, nausea, vomiting, pruritus, abnormal liver function/gamma gamma-glutamyl transferase/alkaline phosphatase tests, decreased appetite, rash, headache, diarrhea, infusion-related reactions, and cytokine release syndrome (“CRS”). The majority of these events were mild/moderate in severity, responded to symptomatic treatment and/or were transient and resolved with time.

Serious, including sometimes fatal, adverse events have been reported in clinical studies with sotigalimab. The majority of these SAEs were considered unrelated to sotigalimab by the investigators. Some SAEs were considered at least possibly related to sotigalimab as well as possibly to other therapies it was combined with.

 

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These possibly related events have included infusion-related reactions, CRS, elevated liver enzymes, bilirubin, fever, and colitis. Less frequent related SAEs reported in one patient each have included kidney injury, hepatic failure, bleeding, immune-mediated encephalitis, myositis, optic neuritis. Many of these SAEs were also considered possibly related to the chemotherapy, radiation or anti-PD(L)1 agent that were used in combination or were assessed as not related to sotigalimab after a safety review by the trial sponsor.

Subjects experienced numerous other SAEs that have been determined to be caused by their health condition or the side effects from other components of the treatment regimens, and not or unlikely related to sotigalimab. Given the high mortality rates of the cancers for which we are initially pursuing development, in particular melanoma, esophageal and gastroesophageal junction (“GEJ”) cancers, sarcoma, rectal cancer, and ovarian cancer, and the pretreated nature of many patients in our completed, ongoing and planned clinical trials of sotigalimab, a number of these subjects have died as a result of their cancer or from direct side effects of surgery and other treatment regimens for their cancer. For example, in our clinical trial for esophageal and GEJ cancers, sotigalimab is combined with standard of care neoadjuvant chemotherapy, radiation and surgery. These standard of care treatments alone are associated with significant toxicities including fatal outcomes, and in this study, complications of surgery have resulted in the death of a patient.

We expect that subjects in our ongoing and planned clinical trials for our product candidates may in the future suffer adverse effects (AEs), SAEs or other side effects, including those not observed in our preclinical studies or previous clinical trials. Results of these trials could reveal a high and unacceptable severity and prevalence of side effects or unexpected characteristics. Undesirable side effects caused by our product candidates could result in the delay, suspension, or termination of clinical trials by us or the FDA, EMA or comparable foreign regulatory authority for a number of reasons. Additionally, a number of the subjects in these clinical trials are expected to die during a trial due to the cancers they suffer and any of the treatment regimens they may have previously experienced, which could impact the development of our product candidates. If we elect or are required to delay, suspend, or terminate any clinical trial, the commercial prospects of our product candidates will be harmed and our ability to generate product revenue from this product candidate will be delayed or eliminated. SAEs observed in clinical trials could hinder or prevent market acceptance of our drug candidates. Any of these occurrences may harm our business, prospects, financial condition, and results of operations significantly.

Even in circumstances in which we do not believe that an AE is related to our product candidates, the investigation into the circumstances of such AE may be time-consuming or inconclusive. In particular, patients may face serious medical issues associated with the underlying cancer indications that our product candidates target, as well as AEs from toxicities and other complications related to other study drugs administered alongside or in combination with our product candidates in clinical trials. For example, some of our clinical trials involve combination therapies of our product candidate with other cancer therapies, such as standard-of-care chemotherapy, chemoradiation or anti-PD-(L)1 agents. In these trials, it is difficult to ascertain whether treatment-related AEs are attributable to our product candidates or to the other agents, and the combination of therapies may have a complicating multiplier effect on such AEs that cannot be determined. As a result, while not directly associated with our product candidates, there are attendant risks with the space in which our product candidates operate, and any related investigations may interrupt our development and commercialization efforts, delay our regulatory approval process or impact and limit the type of regulatory approvals our product candidates receive or maintain.

If further SAEs or other side effects are observed in any of our current or future clinical trials, we may have difficulty recruiting patients to the clinical trials, patients may discontinue treatment or withdraw from our trials or we may be required to abandon the trials or our development efforts of that product candidate altogether. We, the FDA, the EMA, other applicable regulatory authorities or an Institutional Review Board (“IRB”)/Ethics Committee may suspend clinical trials of a product candidate at any time for various reasons, including a belief that subjects in such trials are being exposed to unacceptable health risks or adverse side effects. Some potential therapeutics developed in the biotechnology industry that initially showed therapeutic promise in early-stage

 

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studies have later been found to cause side effects that prevented their further development. Even if the side effects do not preclude a drug from obtaining or maintaining marketing approval, undesirable side effects may inhibit market acceptance of the approved product due to its tolerability versus other therapies. Any of these developments could materially harm our business, financial condition, and prospects.

Further, if any of our product candidates obtains marketing approval, toxicities associated with our product candidates may also develop after such approval and lead to a requirement to conduct additional clinical safety trials, additional warnings being added to the labeling, significant restrictions on the use of the product, or the withdrawal of the product from the market. We cannot predict whether our product candidates will cause toxicities in humans that would preclude or lead to the revocation of regulatory approval based on preclinical studies or early-stage clinical testing.

If we experience delays or difficulties in the enrollment of patients in clinical trials, our receipt of necessary marketing approvals could be delayed or prevented.

We may not initiate, continue or complete clinical trials for our product candidates if we are unable to locate and enroll a sufficient number of eligible patients to participate in these trials as required by the FDA, EMA, or comparable foreign regulatory authorities.

Patient enrollment is a significant factor in the timing of clinical trials, and our ability to enroll eligible patients may be limited or may result in slower enrollment than we anticipate. Patient enrollment may also be affected by other factors, including:

 

   

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.

Our inability to enroll a sufficient number of patients for our clinical trials would result in significant delays or may require us to abandon one or more of our clinical trials altogether. Enrollment delays in our clinical trials may result in increased development costs for our product candidates and jeopardize our ability to obtain marketing approval for the sale of our product candidates.

 

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The clinical trials of our current and any future product candidates may not demonstrate safety and efficacy to the satisfaction of regulatory authorities or otherwise be timely conducted or produce positive results.

Before obtaining marketing approval from regulatory authorities for the sale of our product candidates, we must complete preclinical development and then conduct extensive clinical trials to demonstrate the safety and efficacy of our product candidates. Clinical testing is expensive, difficult to design and implement, can take many years to complete, and its ultimate outcome is uncertain. A failure of one or more clinical trials can occur at any stage of the process. The outcome of preclinical studies and early-stage clinical trials may not be predictive of the success of later clinical trials. Moreover, preclinical and clinical data are often susceptible to varying interpretations and analyses, and many companies that have believed their product candidates performed satisfactorily in preclinical studies and clinical trials have nonetheless failed to obtain marketing approval of their drugs. In addition, in our clinical trials of sotigalimab that are in combination with other available therapies, the results may be uncertain as to the efficacy of the sotigalimab combination when compared to the efficacy of other therapies that are being applied in the trial.

We do not know whether our future clinical trials will begin on time or enroll patients on time, or whether our ongoing and/or future clinical trials will be completed on schedule or at all. Clinical trials can be delayed for a variety of reasons, including delays related to:

 

   

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.

We may experience numerous unforeseen events during, or as a result of, clinical trials that could delay or prevent receipt of marketing approval or our ability to commercialize our product candidates, including:

 

   

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;

 

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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.

Any unforeseen events may cause us to be required to conduct additional clinical trials or other testing of our product candidates beyond those that we currently contemplate, or to be unable to successfully complete clinical trials of our product candidates or other testing. Clinical trial or test results may also not be positive or may be only modestly positive or may have safety concerns. For example, in the APX005M-002 Trial, we enrolled 95 patients with non-small cell lung cancer (“NSCLC”) who were either immunotherapy naïve or who had progressed while on anti-PD(L)1 therapy and treated those patients with sotigalimab in combination with nivolumab. Although we observed a modest number of objective responses in immunotherapy naïve patients and stable disease in patients who had previously progressed on or were refractory to prior anti-PD-(L)1 therapy, the data did not support advancing the development of sotigalimab in these lines of therapy in patients with NSCLC. Any of the foregoing events may cause us to incur unplanned costs, be delayed in obtaining marketing approval, if ever, receive more limited or restrictive marketing approval, be subject to additional post-marketing testing requirements, or have the drug removed from the market after obtaining marketing approval.

The outcome of preclinical testing and early clinical trials that we obtain and that we publish may not be predictive of the success of later clinical trials, and the results of our clinical trials may not satisfy the requirements of the FDA, EMA, or comparable foreign regulatory authorities.

We currently have no products approved for sale and we cannot guarantee that we will ever have marketable drugs. Clinical failure can occur at any stage of clinical development. Clinical trials may produce negative or inconclusive results, and we or any future collaborators may decide, or regulators may require us, to conduct additional clinical trials or preclinical studies. We will be required to demonstrate with substantial evidence through well-controlled clinical trials that our product candidates are safe and effective for use in a diverse population before we can seek marketing approvals for their commercial sale. Success in preclinical studies and early-stage clinical trials does not mean that future larger registration clinical trials will be successful. This is because product candidates in later-stage clinical trials may fail to demonstrate sufficient safety and efficacy to the satisfaction of the FDA, EMA, and other regulatory authorities despite having progressed through preclinical studies and early-stage clinical trials. In particular, no compound with the mechanism of action of sotigalimab has been commercialized, and the outcome of preclinical studies and early-stage clinical trials may not be predictive of the success of later-stage clinical trials. We do not know whether any clinical trials we may conduct will demonstrate consistent or adequate efficacy and safety results sufficient to obtain marketing approval to market our product candidates.

Summary or preliminary data from our clinical trials that we announce or publish may change as new or revised patient data becomes available, and is subject to source verification procedures that could result in material changes in the final data.

As more patient data becomes available, we may publicly disclose new or revised preliminary data from our clinical trials. These preliminary updates are based on analyses of then-available data, and the results and related

 

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findings and conclusions are subject to change following a more comprehensive review of the data related to the particular study or trial. We also make assumptions, estimations, calculations and conclusions as part of our analyses of data, and we may not have received or had the opportunity to fully and carefully evaluate all data. As a result, the summary or preliminary results that we report may differ from future results of the same studies, or different conclusions or considerations may qualify such results, once additional data have been received and fully evaluated. Summary or preliminary data also remain subject to source verification procedures that may result in the final data being materially different from the summary or preliminary data we previously published. As a result, summary or preliminary data should be viewed with caution until the final data are available. In addition, we may report interim analyses of only certain endpoints rather than all endpoints. Preliminary data from clinical trials that we conduct may not be indicative of the final results of the trials and are subject to the risk that one or more of the clinical outcomes may materially change as patient enrollment continues and more patient data become available. Adverse changes between preliminary data and final data could significantly harm our business and prospects. Further, additional disclosure of preliminary data by us or by our competitors in the future could result in volatility in the price of our common stock.

Further, others, including regulatory agencies, may not accept or agree with our assumptions, estimates, calculations, conclusions or analyses or may interpret or weigh the importance of data differently, which could impact the value of the particular program, the approvability or commercialization of the particular product candidate, and our company in general. In addition, the information we choose to publicly disclose regarding a particular study or clinical trial is typically selected from a more extensive amount of available information. Interested parties may not agree with what we determine is the material or otherwise appropriate information to include in our disclosure, and any information we determine not to disclose may ultimately be deemed significant with respect to future decisions, conclusions, views, activities, or otherwise regarding a particular product candidate or our business. If the preliminary or topline data that we report differ from late, final or actual results, or if others, including regulatory authorities, disagree with the conclusions reached, our ability to obtain approval for, and commercialize, our product candidates may be harmed, which could harm our business, financial condition, results of operations, and prospects.

In some instances, there can be significant variability in safety and efficacy results between different clinical trials of the same product candidate due to numerous factors, including changes in trial protocols, differences in size and type of the patient populations, differences in and adherence to the dosing regimen and other trial protocols, use in combination with other therapies, and the rate of discontinuations by clinical trial participants. In addition, we may use patient-reported outcome assessments in some of our clinical trials, which involve patients’ subjective assessments of efficacy of the treatments they receive in the trial. Such assessments can vary widely from day to day for a particular patient, and from patient to patient and site to site within a clinical trial. This subjectivity can increase the uncertainty of, and adversely impact, our clinical trial outcomes.

Our product candidates may not achieve adequate market acceptance among physicians, patients, healthcare payors, and others in the medical community necessary for commercial success.

Even if our product candidates receive regulatory approval, they may not gain adequate market acceptance among physicians, patients, healthcare payors, and others in the medical community. For example, current standard-of-care cancer treatments, such as existing chemotherapy and radiation therapy, are well established in the medical community, and doctors may continue to rely on these treatments. The degree of market acceptance of any of our approved product candidates, if approved for commercial sale, will depend on a number of factors, including:

 

   

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;

 

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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.

If any product candidate is approved but does not achieve an adequate level of acceptance by physicians, hospitals, healthcare payors, and patients, we may generate less revenue from that product candidate than anticipated, which could harm our financial results.

The sizes of the patient populations suffering from some of the diseases we are targeting may be based on estimates that are inaccurate, may be small, or may be smaller than estimated.

We rely on estimates to project the incidence and prevalence of diseases we are targeting and the subset of patients with these diseases who have the potential to benefit from treatment with sotigalimab and our other product candidates. We derive these estimates from a variety of sources, including United States and global cancer databases, scientific literature, surveys of clinics, physician interviews, patient foundations, and market research, and they may prove to be incorrect. Further, new studies may change the estimated incidence or prevalence of these diseases. The number of patients may turn out to be lower than expected. Additionally, the potentially addressable patient population for sotigalimab and any other future product candidates may be more limited than we originally estimated or may not be amenable to treatment with sotigalimab and any other product candidates, if and when approved. For example, in March 2022, the FDA approved nivolumab and relatlimab-rmbw (OpdualagTM) for use in patients with unresectable or metastatic melanoma, which may limit the number of patients with unresectable or metastatic melanoma that have progressive disease during treatment with anti-PD-(L)1 therapy, which would be the target population for a potential registration-enabling study of sotigalimab in combination with a PD-(L)1 inhibitor that we are considering. Even if we obtain significant market share for sotigalimab and any other product candidates, small potential target populations for certain indications means we may never achieve profitability without obtaining market approval for additional indications.

Many of our additional internal programs, including APX601, are at earlier stages of development than sotigalimab and may fail in development or suffer delays, including if we are unable to raise adequate additional funding, that adversely affect their commercial viability.

Other than sotigalimab, all of our internal programs are in preclinical development or at the research stage and may fail in development or suffer delays that adversely affect their commercial viability. These programs may fail to yield product candidates. A product candidate can unexpectedly fail at any stage of preclinical and clinical development. The historical failure rate for product candidates is high due to risks relating to safety, efficacy, clinical execution, changing standards of medical care, and other unpredictable variables. The results from preclinical testing or early clinical trials of a product candidate may not be predictive of the results that will

 

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be obtained in later-stage clinical trials of the product candidate. The success of any product candidates we may develop will depend on many factors, including the following:

 

   

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.

We will need additional funding to continue to advance the development of our other internal programs, including APX601. If we are unable to secure adequate funding to continue such development, we expect that we will be required to delay or stop the development of such programs.

Even if we successfully advance any other product candidates into clinical development, their success will be subject to all of the clinical, regulatory and commercial risks described elsewhere in this “Risk Factors” section. Accordingly, we cannot assure you that we will ever develop, obtain regulatory approval of, commercialize, or generate significant revenue from any product candidate.

Any product candidates we develop may become subject to unfavorable third-party reimbursement practices and pricing regulations.

The availability and extent of coverage and adequate reimbursement by governmental and private payors is essential for most patients to afford the expense of antibody therapeutics like sotigalimab and our other product candidates. Sales of any of our product candidates that receive marketing approval will depend substantially, both in the United States and internationally, on the extent to which the costs of our product candidates will be paid by health maintenance, managed care, pharmacy benefit, and similar healthcare management organizations or reimbursed by government health administration authorities, private health coverage insurers, and other third-party payors. If reimbursement is not available, or is available only to limited levels, we may not successfully commercialize our product candidates. Even if coverage is provided, the approved reimbursement amount may not be high enough to allow us to establish or maintain pricing sufficient to realize an adequate return on our investment. Coverage and reimbursement may impact the demand for, or the price of, any product candidate for which we obtain marketing approval. If coverage and reimbursement are not available or reimbursement is available only to limited levels, we may not successfully commercialize any product candidate for which we obtain marketing approval.

There is significant uncertainty related to insurance coverage and reimbursement of newly approved products. In the United States, principal decisions about reimbursement for new products are typically made by Centers for Medicare & Medicaid Services (“CMS”), an agency within the U.S. Department of Health and Human Services (“HHS”). CMS decides whether and to what extent a new product will be covered and reimbursed under Medicare, and private payors often follow CMS’s decisions regarding coverage and reimbursement to a substantial degree. However, one payor’s determination to provide coverage for a drug product does not assure that other payors will also provide coverage for the drug product. As a result, the coverage determination process is often time-consuming and costly. This process will require us to provide scientific and clinical support for the use of our products to each payor separately, with no assurance that coverage and adequate reimbursement will be applied consistently or obtained in the first instance.

Increasingly, third-party payors require that drug companies provide them with predetermined discounts from list prices and challenge the prices charged for medical products. Further, such payors increasingly challenge the price, examine the medical necessity and review the cost effectiveness of medical drug products. There may be especially significant delays in obtaining coverage and reimbursement for newly approved drugs.

 

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Third-party payors may limit coverage to specific drug products on an approved list, known as a formulary, which might not include all FDA-approved drugs for a particular indication. We may need to conduct expensive studies to demonstrate the medical necessity and cost-effectiveness of our products. Nonetheless, our product candidates may not be considered medically necessary or cost effective. We cannot be sure that coverage and reimbursement will be available for any product that we commercialize and, if reimbursement is available, what the level of reimbursement will be.

Outside the United States, international operations are generally subject to extensive governmental price controls and other market regulations, and we believe the increasing emphasis on cost-containment initiatives in Europe, Canada and other countries has and will continue to put pressure on the pricing and usage of therapeutics such as our product candidates. In many countries, particularly the countries of the European Union, medical product prices are subject to varying price control mechanisms as part of national health systems. In these countries, pricing negotiations with governmental authorities can take considerable time after a product receives marketing approval. To obtain reimbursement or pricing approval in some countries, we may be required to conduct a clinical trial that compares the cost-effectiveness of our product candidate to other available therapies. In general, product prices under such systems are substantially lower than in the United States. Other countries allow companies to fix their own prices for products, but monitor and control company profits.

Additional foreign price controls or other changes in pricing regulation could restrict the amount that we are able to charge for our product candidates. Accordingly, in markets outside the United States, the reimbursement for our products may be reduced compared with the United States and may be insufficient to generate commercially reasonable revenue and profits.

If we are unable to establish or sustain coverage and adequate reimbursement for any future product candidates from third-party payors, the adoption of those products and sales revenue will be adversely affected, which, in turn, could adversely affect the ability to market or sell those product candidates. Coverage policies and third-party reimbursement rates may change at any time. Even if we attain favorable coverage and reimbursement status for one or more products for which we receive regulatory approval, less favorable coverage policies and reimbursement rates may be implemented in the future.

If our competitors develop and market products that are more effective, safer, or less expensive than our product candidates, our commercial opportunities will be negatively impacted.

The biotechnology industry is highly competitive and subject to rapid and significant technological change. Moreover, the oncology field is characterized by strong and increasing competition, with a strong emphasis on intellectual property. Products we may develop in the future for the treatment of cancer and any other diseases are likely to face competition from other drugs and therapies, including those of which we may not currently be aware. In addition, our products may need to compete with off-label drugs used by physicians to treat the indications for which we seek approval. This may make it difficult for us to replace existing therapies with our products.

Major multinational pharmaceutical and biotechnology companies, emerging and start-up companies, universities, and other research institutions, could focus their future efforts on developing competing therapies and treatments for any of the indications we are currently targeting or may target in the future. For example, each of Hoffmann-La Roche AG, Janssen Biotech, Inc., a subsidiary of Johnson & Johnson (in collaboration with Alligator Bioscience AB), Celldex Therapeutics, Inc., Seagen Inc., Eucure Biopharma, a subsidiary of Biocytogen, and AbbVie Inc. are developing CD40-based antibody product candidates for solid tumor oncology indications that are in clinical trials, typically in combination therapies, and other companies and institutions have other CD40-based product candidates in development.

Many of these current and potential competitors have significantly greater financial, manufacturing, marketing, drug development, technical and human resources, and commercial expertise than we do. Large pharmaceutical and biotechnology companies, in particular, have extensive experience in clinical testing, obtaining regulatory approvals, recruiting patients, and manufacturing biotechnology products. These companies

 

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also have significantly greater research, development, and marketing capabilities than we do and may also have products that have been approved or are in late stages of development, and collaborative arrangements in our target markets with leading companies and research institutions. Established pharmaceutical and biotechnology companies may also invest heavily to accelerate discovery and development of novel compounds or to in-license novel compounds that could make the product candidates that we develop obsolete. As a result of any of these factors, our competitors may succeed in obtaining approval from the FDA, EMA, or foreign regulatory authorities or discovering, developing, and commercializing products in our field before or more successfully than we do.

Smaller and other early-stage companies may also prove to be significant competitors, particularly through collaborative arrangements with large and established companies. These companies compete with us in recruiting and retaining qualified scientific and management personnel, establishing clinical trial sites and patient registration for planned clinical trials, as well as in acquiring technologies complementary to, or necessary for, our programs. In addition, the biotechnology industry is characterized by rapid technological change. If we fail to stay at the forefront of technological change, we may be unable to compete effectively. Technological advances or products developed by our competitors may render our technologies or product candidates obsolete, less competitive or not economical.

We have limited resources and are currently focusing our efforts on developing sotigalimab and APX601. As a result, we may fail to capitalize on other product candidates or indications that may ultimately have proven to be more profitable.

We are currently focusing our efforts on developing sotigalimab for a variety of indications, including melanoma, esophageal and GEJ cancers, sarcoma and rectal cancer and advancing the development of APX601 for use in solid tumors. As a result, we may forego or delay pursuit of opportunities for other indications or with other product candidates that may have greater commercial potential. Our resource allocation decisions may cause us to fail to capitalize on viable product candidates or profitable market opportunities. Our spending on current and future research and development activities for specific indications may not yield any commercially viable drugs. If we do not accurately evaluate the commercial potential or target markets for a particular product candidate, we may relinquish valuable rights to that product candidate through collaboration, licensing, or other strategic arrangements in cases in which it would have been more advantageous for us to retain sole development and commercialization rights to such product candidate.

We may not succeed in our efforts to use our technology platform to expand our pipeline of product candidates and develop marketable products.

Because we have limited financial and managerial resources, we focus our pipeline research efforts on using our APXiMAB platform to identify product candidates to molecular targets of interest. Our business depends on our successful development and commercialization of sotigalimab, APX601, and internal product candidates that may emerge from our preclinical research and development activities. Even if we continue to successfully expand our pipeline, development of the potential product candidates that we identify will require substantial investment in clinical development, management of preclinical, clinical, and manufacturing activities, regulatory approval in multiple jurisdictions, obtaining manufacturing supply capability, building a commercial organization, and significant marketing efforts before we generate any revenue from product sales. Furthermore, such product candidates may not be suitable for clinical development, including as a result of their harmful side effects, limited efficacy, or other characteristics that indicate that they are unlikely to be products that will receive marketing approval and achieve market acceptance. If we cannot validate our technology platform by successfully developing and commercializing product candidates based upon our technological approach, we may not obtain product or partnership revenue in future periods, which would adversely affect our business, prospects, financial condition, and results of operations.

 

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We are developing some our product candidates for use in combination with standard-of-care as well as emerging or experimental cancer therapies, which exposes us to several risks beyond our control.

We are developing some of our product candidates, including sotigalimab, for use in combination with current standard of care or other emerging or experimental cancer therapies. This exposes us to supply risk to the extent there is not an adequate supply of these therapies for use in combination with our product candidates, either in clinical trials or after any approval, as well as pricing risk if these combination therapies are expensive and the addition of our product candidates would be too costly to support reimbursement or payor coverage. In particular, providers of some of these emerging or experimental therapies have been contributing their therapies to use in combination trials at generally no or limited cost to us. If this were to change, our trial costs could increase substantially. Also, although combinations with an experimental agent that has not been approved may prove to be clinically beneficial, the experimental agent will still need to meet regulatory approval requirements for the combined therapy to become commercially available. In addition, if the standard of care were to evolve or change, the clinical utility of our product candidates could be diminished or eliminated. If any of these were to occur, our business could be materially harmed.

We may use companion diagnostics in the future in our development programs, and if such companion diagnostics for our product candidates are not successfully, and in a timely manner, validated, developed, or approved, we may not achieve marketing approval or realize the full commercial potential of our product candidates.

We may use companion diagnostics in our future product candidate development programs. If such companion diagnostics are developed in conjunction with clinical programs, the FDA, EMA, or comparable regulatory authority may require regulatory approval of a companion diagnostic as a condition to approval of the product candidate. For example, if we use a diagnostic to test which patients are most likely to benefit from our product candidate for the treatment of a particular indication as a criterion for enrollment, then we will likely be required to obtain FDA approval or clearance of the companion diagnostic, concurrent with approval of our product candidate. We may also be required to demonstrate to the FDA the predictive utility of a companion diagnostic, i.e. that the diagnostic selects for patients in whom the therapy will be effective or more effective compared to patients not selected for by the diagnostic. We do not have experience or capabilities in developing or commercializing diagnostics and plan to rely in large part on third parties to perform these functions. We do not currently have any agreement in place with any third party to develop or commercialize companion diagnostics for any of our product candidates. Companion diagnostics are subject to regulation by the FDA, the EMA, and other foreign regulatory authorities as medical devices and require separate regulatory approval or clearance prior to commercialization.

If we or our partners, or any third party, are unable to successfully develop companion diagnostics in the future in our product candidates, or experience delays in doing so:

 

   

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.

In addition, any future product candidates developed in conjunction with companion diagnostics may be perceived negatively compared to alternative treatments that do not require the use of companion diagnostics, either due to the additional cost of the companion diagnostic, the requirement of samples for testing, or the need to complete additional procedures to identify genetic markers prior to administering our product candidates. If any of these events were to occur, it would significantly harm our business, results of operations and prospects.

 

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Our business entails a significant risk of product liability, and if we are unable to obtain sufficient insurance coverage, the costs of product liability could have an adverse effect on our business and financial condition.

Our business exposes us to significant product liability risks inherent in the development, testing, manufacturing, and marketing of therapeutic treatments. Product liability claims could delay or prevent completion of our development programs. If we succeed in marketing products, such claims could result in an FDA, EMA, or other regulatory investigation of the safety and effectiveness of our products, our manufacturing processes and facilities, or our marketing programs. Such regulatory investigation could potentially lead to a recall of our products or more serious enforcement action, limitations on the approved indications for which they may be used, or suspension or withdrawal of approvals. Regardless of the merits or eventual outcome, liability claims may also result in decreased demand for our products, injury to our reputation, costs to defend the related litigation, a diversion of management’s time and our resources, and substantial monetary awards to trial participants or patients. We would expect to obtain product liability insurance prior to marketing any of our product candidates. Any insurance Apexigen has now or that we may obtain may not provide sufficient coverage against potential liabilities. Furthermore, clinical trial and product liability insurance is becoming increasingly expensive. As a result, we may be unable to obtain sufficient insurance at a reasonable cost to protect us against losses caused by product liability claims that could have an adverse effect on our business and financial condition.

Risks Related to Regulatory Approval and Other Legal Compliance Matters for Apexigen’s Product Candidates

The regulatory approval processes of the FDA, EMA, and comparable foreign regulatory authorities are lengthy, time-consuming and inherently unpredictable. If we are ultimately unable to obtain regulatory approval for our product candidates, we will be unable to generate product revenue and our business will be substantially harmed.

The time required to obtain approval by the FDA, EMA, and comparable foreign regulatory authorities is unpredictable, typically takes many years following the commencement of clinical trials, and depends upon numerous factors, including the type, complexity, and novelty of the product candidates involved. In addition, approval policies, regulations, or the type and amount of clinical data necessary to gain approval may change during the course of a product candidate’s clinical development and may vary among jurisdictions, which may cause delays in the approval or the decision not to approve an application. Regulatory authorities have substantial discretion in the approval process and may refuse to accept any application or may decide that our data are insufficient for approval and require additional preclinical, clinical, or other studies. We have not submitted for, or obtained regulatory approval for, any product candidate, and it is possible that none of our existing product candidates or any product candidates we may seek to develop in the future will ever obtain regulatory approval.

Applications for our product candidates could fail to receive regulatory approval in an initial or subsequent indication for many reasons, including the following:

 

   

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;

 

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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.

Further, development of our product candidates and/or regulatory approval may be delayed for reasons beyond our control. For example, a U.S. federal government shutdown or budget sequestration, such as ones that occurred during 2018 and 2019, or other FDA priorities, such as responding to COVID-19, may result in significant reductions to, or demands on, the FDA’s budget, employees, and operations, which may lead to slower response times and longer review periods, potentially affecting our ability to progress development of our product candidates or obtain regulatory approval for our product candidates.

This lengthy approval process, as well as the unpredictability of the results of clinical trials, may result in our failing to obtain regulatory approval to market any of our product candidates, which would significantly harm our business, results of operations, and prospects.

Our product candidates may cause undesirable side effects or have other properties that could prevent their regulatory approval or result in significant negative consequences.

Adverse events or other undesirable side effects caused by our product candidates could cause us or regulatory authorities to interrupt, delay, or halt clinical trials and could result in a more restrictive label or the delay or denial of regulatory approval by the FDA, EMA, or other comparable foreign regulatory authorities. Drug-related side effects could affect patient recruitment, the ability of enrolled patients to complete the trial, and/or result in potential product liability claims. Regardless of merit or eventual outcome, product liability claims may result in impairment of our business reputation, withdrawal of clinical trial participants, costs due to related litigation, distraction of management’s attention from our primary business, initiation of investigations by regulators, substantial monetary awards to patients or other claimants, the inability to commercialize our product candidates, and decreased demand for our product candidates, if approved for commercial sale.

Additionally, if one or more of our product candidates receives marketing approval, and we or others later identify undesirable side effects or adverse events caused by such products, a number of potentially significant negative consequences could result, including:

 

   

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;

 

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we could be sued and held liable for harm caused to patients; and

 

   

our reputation may suffer.

Any of these events could prevent us from achieving or maintaining market acceptance of the particular product candidate, if approved, and could significantly harm our business, financial condition, results of operations, and growth prospects.

For any current and future clinical trials for our product candidates outside the United States, the FDA, EMA, and applicable foreign regulatory authorities may not accept data from such trials.

We conduct clinical trials outside the United States, including in Europe, and we may choose to conduct future clinical trials outside the United States. The acceptance of study data from clinical trials conducted outside the United States or another jurisdiction by the FDA, EMA, or applicable foreign regulatory authority may be subject to certain conditions. In cases where data from foreign clinical trials are intended to serve as the basis for marketing approval in the United States, the FDA will generally not approve the application on the basis of foreign data alone unless the data are applicable to the United States population and United States medical practice, and the trials were performed by clinical investigators of recognized competence and pursuant to Good Clinical Practice (“GCP”) regulations. Additionally, the FDA’s clinical trial requirements, including sufficient size of patient populations and statistical powering, must be met. Many foreign regulatory bodies have comparable approval requirements, including appropriate examination of the product in the country-specific population. In addition, such foreign trials would be subject to the applicable local laws of the foreign jurisdictions where the trials are conducted. There can be no assurance that the FDA, EMA, or any applicable foreign regulatory authority will accept data from trials conducted outside of the United States or the applicable jurisdiction. If the FDA, EMA, or any applicable foreign regulatory authority does not accept such data, it may result in the need for additional trials, which would be costly and time-consuming and delay aspects of our business plan, and may result in our product candidates not receiving approval or clearance for commercialization in the applicable jurisdiction.

Obtaining and maintaining regulatory approval of our product candidates in one jurisdiction does not mean that we will succeed in obtaining regulatory approval of our product candidates in other jurisdictions.

Obtaining and maintaining regulatory approval of our product candidates in one jurisdiction does not guarantee that we will obtain or maintain regulatory approval in any other jurisdiction, but a failure or delay in obtaining regulatory approval in one jurisdiction may have a negative effect on the regulatory approval process in others. For example, even if the FDA, EMA, or comparable foreign regulatory authority grants marketing approval of a product candidate, comparable regulatory authorities in foreign jurisdictions must also approve the manufacturing, marketing, and promotion of the product candidate in those countries. Approval procedures vary among jurisdictions and can involve requirements and administrative review periods different from those in the United States, including additional preclinical studies or clinical trials, as clinical trials conducted in one jurisdiction may not be accepted by regulatory authorities in other jurisdictions. In many jurisdictions outside the United States, a product candidate must be approved for reimbursement before it can be approved for sale in that jurisdiction. In some cases, the price that we intend to charge for our products is also subject to approval. Obtaining foreign regulatory approvals and compliance with foreign regulatory requirements could result in significant delays, difficulties, and costs for us and could delay or prevent the introduction of our products in certain countries. If we or any partner we work with fails to comply with the regulatory requirements in international markets or fails to receive applicable marketing approvals, our target market will be reduced, and our ability to realize the full market potential of our product candidates will be harmed.

 

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Even if we apply for and obtain accelerated approval or Breakthrough Therapy, Fast Track or other designation intended to expedite, facilitate or reduce the cost pursuing development or regulatory review or approval with the FDA or other regulatory authorities for any of our product candidates, there is no guarantee that such designation would lead to faster development, regulatory review, or approval, nor would it increase the likelihood that any such product candidate will receive marketing approval.

If a product candidate is intended for the treatment of a serious condition and nonclinical or clinical data demonstrate the potential to address unmet medical need for such condition or a substantial improvement over available therapy for such condition, a product candidate sponsor may apply for FDA Fast Track or Breakthrough Therapy designation, and there may be other priority designations available under various regulatory bodies. In the future, we may apply for such priority designation depending on the results of our clinical trials. Even though we may apply for and receive a Fast Track, Breakthrough Therapy or other priority designations, such priority designation does not ensure that we will receive marketing approval or that approval will be granted within any particular timeframe. We may not experience a faster development or regulatory review or approval process with the priority designation compared to conventional FDA procedures. In addition, the FDA may withdraw Fast Track or Breakthrough Therapy designation if it believes that the designation is no longer supported by data from our clinical development program. Fast Track or Breakthrough Therapy designation alone does not guarantee qualification for the FDA’s priority review procedures. Further, even if any of our products obtain Fast Track or Breakthrough Therapy designation, this may not lead to earlier regulatory approval or commercialization of our products due to the extensive and time-consuming steps necessary to obtain FDA approval and commercialize a product candidate.

Even if we obtain regulatory approval for a product candidate, our products will remain subject to extensive regulatory scrutiny.

If any of our product candidates are approved, they will be subject to ongoing regulatory requirements for manufacturing, labeling, packaging, storage, advertising, promotion, sampling, record-keeping, conduct of post-marketing studies, and submission of safety, efficacy, and other post-market information, including both federal and state requirements in the United States and requirements of comparable foreign regulatory authorities.

Manufacturers and manufacturers’ facilities are required to comply with extensive requirements imposed by the FDA, EMA, and comparable foreign regulatory authorities, including ensuring that quality control and manufacturing procedures conform to Good Manufacturing Practice (“GMP”) regulations. As such, we and our contract manufacturers will be subject to continual review and inspections to assess compliance with GMP and adherence to commitments made in any BLA, NDA, or Marketing Authorization Application (“MAA”). Accordingly, we and others with whom we work must continue to expend time, money, and effort in all areas of regulatory compliance, including manufacturing, production, and quality control.

Any regulatory approvals that we receive for our product candidates will be subject to limitations on the approved indicated uses for which the product may be marketed and promoted or to the conditions of approval (including potentially the requirement to implement a Risk Evaluation and Mitigation Strategy), or contain requirements for potentially costly post-marketing testing. We will be required to report certain adverse reactions and production problems, if any, to the FDA, EMA, and comparable foreign regulatory authorities. Any new legislation addressing drug safety issues could result in delays in product development or commercialization, or increased costs to assure compliance. The FDA and other agencies, including the Department of Justice, closely regulate and monitor the post-approval marketing and promotion of products to ensure that they are manufactured, marketed, and distributed only for the approved indications and in accordance with the provisions of the approved labeling. We will have to comply with requirements concerning advertising and promotion for our products. Promotional communications with respect to prescription drugs are subject to a variety of legal and regulatory restrictions and must be consistent with the information in the product’s approved label. As such, we may not promote our products for indications or uses for which they do not have approval. The holder of an approved BLA, NDA, or MAA must submit new or supplemental applications and obtain approval for certain changes to the approved product, product labeling, or manufacturing process. We could also be asked to conduct

 

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post-marketing clinical trials to verify the safety and efficacy of our products in general or in specific patient subsets. If original marketing approval was obtained via the accelerated approval pathway, we could be required to conduct a successful post-marketing clinical trial to confirm clinical benefit for our products. An unsuccessful post-marketing study or failure to complete such a study could result in the withdrawal of marketing approval.

If a regulatory agency discovers previously unknown problems with a product, such as adverse events of unanticipated severity or frequency, or problems with the facility where the product is manufactured, or disagrees with the promotion, marketing, or labeling of a product, such regulatory agency may impose restrictions on that product or us, including requiring withdrawal of the product from the market. If we fail to comply with applicable regulatory requirements, a regulatory agency or enforcement authority may, among other things:

 

   

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.

Any government investigation of alleged violations of law could require us to expend significant time and resources in response, and could generate negative publicity. Any failure to comply with ongoing regulatory requirements may significantly and adversely affect our ability to commercialize and generate revenue from our products. If regulatory sanctions are applied or if regulatory approval is withdrawn, this would significantly harm our business, financial condition, results of operations, and growth prospects.

Healthcare legislative measures aimed at reducing healthcare costs may have a material adverse effect on our business and results of operations.

Third-party payors, whether domestic or foreign, or governmental or commercial, are developing increasingly sophisticated methods of controlling healthcare costs. In both the United States and certain foreign jurisdictions, there have been a number of legislative and regulatory changes to the healthcare system that could impact our ability to sell our products profitably. In particular, in 2010, the Patient Protection and Affordable Care Act (“ACA”) was enacted, which, among other things, subjected biologic products to potential competition by lower-cost biosimilars, addressed a new methodology by which rebates owed by manufacturers under the Medicaid Drug Rebate Program are calculated for drugs that are inhaled, infused, instilled, implanted, or injected, increased the minimum Medicaid rebates owed by most manufacturers under the Medicaid Drug Rebate Program, extended the Medicaid Drug Rebate Program to utilization of prescriptions of individuals enrolled in Medicaid managed care organizations, subjected manufacturers to new annual fees and taxes for certain branded prescription drugs, and provided incentives to programs that increase the federal government’s comparative effectiveness research. Recent changes in the U.S. administration could lead to repeal of or changes in some or all of the ACA, and complying with any new legislation or reversing changes implemented under the ACA could be time-intensive and expensive, resulting in a material adverse effect on our business. Until the ACA is fully implemented or there is more certainty concerning the future of the ACA, it will be difficult to predict its full impact and influence on our business.

There have been, and likely will continue to be, legislative and regulatory proposals at the foreign, federal and state levels directed at containing or lowering the cost of healthcare. We cannot predict the initiatives that may be adopted in the future. The continuing efforts of the government, insurance companies, managed care

 

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organizations and other payors of healthcare services to contain or reduce costs of healthcare and/or impose price controls may adversely affect:

 

   

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.

We expect that the ACA, as well as other healthcare reform measures that may be adopted in the future, may result in additional reductions in Medicare and other healthcare funding, more rigorous coverage criteria, lower reimbursement and new payment methodologies. This could lower the price that we receive for any approved product. Any denial in coverage or reduction in reimbursement from Medicare or other government-funded programs may result in a similar denial or reduction in payments from private payors, which may prevent us from being able to generate sufficient revenue, attain profitability or commercialize our product candidates, if approved.

Our employees, independent contractors, consultants, commercial partners and vendors may engage in misconduct or other improper activities, including noncompliance with regulatory standards and requirements.

We are exposed to the risk of fraud, misconduct or other illegal activity by our employees, independent contractors, consultants, commercial partners and vendors. Misconduct by these parties could include intentional, reckless and negligent conduct that fails to:

 

   

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.

If we obtain FDA approval of any of our product candidates and begin commercializing those products in the United States, our potential exposure under such laws will increase significantly, and our costs associated with compliance with such laws are also likely to increase. In particular, research, sales, marketing, education and other business arrangements in the healthcare industry are subject to extensive laws designed to prevent fraud, kickbacks, self-dealing and other abusive practices. These laws and regulations may restrict or prohibit a wide range of pricing, discounting, educating, marketing and promotion, sales and commission, certain customer incentive programs and other business arrangements generally. Activities subject to these laws also involve the improper use of information obtained in the course of patient recruitment for clinical trials, which could result in regulatory sanctions and cause serious harm to our reputation. We plan to adopt a code of business conduct and ethics in connection with this offering, but it is not always possible to identify and deter misconduct by employees and third parties, and the precautions we take to detect and prevent this activity may not be effective in controlling unknown or unmanaged risks or losses or in protecting us from governmental investigations or other actions or lawsuits stemming from a failure to be in compliance with such laws. If any such actions are instituted against us, and we are not successful in defending ourselves or asserting our rights, those actions could have a significant impact on our business, including the imposition of significant fines or other sanctions.

 

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If we fail to comply with healthcare laws, we could face substantial penalties and our business, operations, and financial conditions could be adversely affected.

If we obtain FDA approval for any of our product candidates and begin commercializing those products in the United States, our operations will be subject to various federal and state fraud and abuse laws. The laws that may impact our operations include the following:

 

   

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

 

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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.

Because of the breadth of these laws and the narrowness of the statutory exceptions and safe harbors available, it is possible that some of our business activities could, despite our efforts to comply, be subject to challenge under one or more of such laws. Efforts to ensure that our business arrangements will comply with applicable healthcare laws may involve substantial costs. It is possible that governmental and enforcement authorities will conclude that our business practices may not comply with current or future statutes, regulations or case law interpreting applicable fraud and abuse or other healthcare laws and regulations. If any such actions are instituted against us, and we are not successful in defending ourselves or asserting our rights, those actions could have a significant impact on our business, including the imposition of civil, criminal and administrative penalties, damages, disgorgement, monetary fines, possible exclusion from participation in Medicare, Medicaid, and other federal healthcare programs, contractual damages, reputational harm, diminished profits and future earnings, and curtailment of our operations, any of which could adversely affect our ability to operate our business and our results of operations. In addition, the approval and commercialization of any of our product candidates outside the United States will also likely subject us to foreign equivalents of the healthcare laws mentioned above, among other foreign laws. Further, achieving and sustaining compliance with applicable federal and state privacy, security, and fraud laws may prove costly.

If we or any clinical collaborators, CROs, contract manufacturers, or other contractors and suppliers that we engage fail to comply with environmental, health, and safety laws and regulations, we could become subject to fines or penalties or incur costs that could have a material adverse effect on our business.

We and any clinical collaborators, CROs, contract manufacturers, or other contractors and suppliers that we engage are subject to numerous federal, state, and local environmental, health and safety laws, regulations, and permitting requirements, including:

 

   

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.

Our operations involve the use of hazardous and flammable materials, including chemicals and biological and radioactive materials. Our operations also produce hazardous waste. We generally contract with third parties for the disposal of these materials and wastes. We cannot eliminate the risk of contamination or injury from these materials. In the event of contamination or injury resulting from our use of hazardous materials, we could be held liable for any resulting damages, and any liability could exceed our resources. Under certain environmental laws, we could be held responsible for costs relating to any contamination at our current or past facilities and at third-party facilities. We also could incur significant costs associated with civil or criminal fines and penalties.

 

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Compliance with applicable environmental laws and regulations may be expensive, and current or future environmental laws and regulations may impair our research, product development, and manufacturing efforts. In addition, we cannot entirely eliminate the risk of accidental injury or contamination from these materials or wastes. Although we maintain workers’ compensation insurance to cover us for costs and expenses, we may incur due to injuries to our employees resulting from the use of hazardous materials, this insurance may not provide adequate coverage against potential liabilities. We do not carry specific biological or hazardous waste insurance coverage, and our property, casualty, and general liability insurance policies specifically exclude coverage for damages and fines arising from biological or hazardous waste exposure or contamination. Accordingly, in the event of contamination or injury, we could be held liable for damages or be penalized with fines in an amount exceeding our resources, and our clinical trials or regulatory approvals could be suspended, which could have a material adverse effect on our business, financial condition, results of operations, and prospects.

Our business activities may be subject to the FCPA and similar anti-bribery and anti-corruption laws.

Our business activities may be subject to the Foreign Corrupt Practices Act (“FCPA”) and similar anti-bribery or anti-corruption laws, regulations, or rules of other countries in which we operate, including the U.K. Bribery Act. The FCPA generally prohibits offering, promising, giving, or authorizing others to give anything of value, either directly or indirectly, to a non-U.S. government official in order to influence official action, or otherwise obtain or retain business. The FCPA also requires public companies to make and keep books and records that accurately and fairly reflect the transactions of the corporation and to devise and maintain an adequate system of internal accounting controls. Our business is heavily regulated and therefore involves significant interaction with public officials, including officials of non-U.S. governments. Additionally, in many other countries, the researchers with whom we conduct clinical trials, and the healthcare providers who prescribe pharmaceuticals, are employed by their government, and the purchasers of pharmaceuticals are government entities. As a result, our dealings with these researchers, prescribers, and purchasers are subject to regulation under the FCPA. Recently the Securities and Exchange Commission (“SEC”) and Department of Justice have increased their FCPA enforcement activities with respect to biotechnology and pharmaceutical companies. There is no certainty that all of our employees, agents, contractors or collaborators, or those of our affiliates, will comply with all applicable laws and regulations, particularly given the high level of complexity of these laws. Violations of these laws and regulations could result in fines, criminal sanctions against us, our officers or our employees, the closing down of our facilities, requirements to obtain export licenses, cessation of business activities in sanctioned countries, implementation of compliance programs and prohibitions on the conduct of our business. Any such violations could include prohibitions on our ability to offer our products in one or more countries and could materially damage our reputation, our brand, our international expansion efforts, our ability to attract and retain employees, and our business, prospects, operating results and financial condition.

Failure to comply with privacy and data protection laws, regulations, or contractual obligations could lead to government enforcement actions (which could include civil or criminal penalties), private disputes and litigation, and/or adverse publicity and could negatively affect our operating results and business.

We receive, generate, and store significant and increasing volumes of sensitive information, such as employee, personal, patient and collaborator data. In addition, we actively seek access to medical information, including patient data, through research and development partnerships and collaborations or otherwise. We have legal and contractual obligations regarding the protection of confidentiality and appropriate use of personal data. We and our partners may be subject to federal, state, and foreign data protection laws and regulations (i.e., laws and regulations that address privacy and data security). These data protection laws and regulations continue to evolve and may result in ever-increasing public scrutiny and escalating levels of enforcement and sanctions and increased costs of compliance.

In the United States, numerous federal and state laws and regulations, including state data breach notification laws, state health information privacy laws, and federal and state consumer protection laws (e.g.,

 

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Section 5 of the FTC Act), that govern the collection, use, disclosure and protection of health-related and other personal information could apply to our operations or the operations of our partners, including during our clinical trials. In addition, we may obtain health information from third parties (including research institutions from which we obtain clinical trial data) that are subject to privacy and security requirements under HIPAA, as amended by HITECH, which establish privacy and security standards that limit the use and disclosure of individually identifiable health information and require the implementation of administrative, physical, and technological safeguards to protect the privacy of individually identifiable health information and ensure the confidentiality, integrity, and availability of electronic protected health information. Determining whether individually identifiable health information has been handled in compliance with applicable privacy standards and our contractual obligations can require complex factual and statistical analyses and may be subject to changing interpretation. Depending on the facts and circumstances, we could be subject to civil and criminal penalties if we knowingly obtain, use, or disclose individually identifiable health information maintained by a HIPAA-covered entity in a manner that is not authorized or permitted by HIPAA. Enforcement activity can result in financial liability and reputational harm, and responses to such enforcement activity can consume significant internal resources. We cannot be sure how these regulations will be interpreted, enforced, or applied to our operations. In addition to the risks associated with enforcement activities and potential contractual liabilities, our ongoing efforts to comply with evolving laws and regulations at the federal and state level may be costly and require ongoing modifications to our policies, procedures and systems. Failure to comply with any of these laws could result in enforcement action against us, including fines, imprisonment of company officials and public censure, claims for damages by customers and other affected individuals, damage to our reputation, and loss of goodwill (both in relation to existing and prospective customers), any of which could have a material adverse effect on our business, financial condition, results of operations, or prospects.

Although we take measures to protect sensitive data from unauthorized access, use or disclosure, our information technology and infrastructure may be vulnerable to attacks by hackers or viruses or breached due to employee error, malfeasance, or other malicious or inadvertent disruptions. Any such breach or interruption could compromise our networks and the information stored there could be accessed by unauthorized parties, manipulated, publicly disclosed, lost or stolen. Any such access, breach or other loss of information could result in legal claims or proceedings, and liability under federal or state laws that protect the privacy of personal information, such as HIPAA and HITECH, and regulatory penalties. Notice of breaches must be made to affected individuals, the Secretary of the HHS, and for extensive breaches, notice may need to be made to the media or State Attorneys General. Such a notice could harm our reputation and our ability to compete. The HHS has the discretion to impose penalties without attempting to resolve violations through informal means. In addition, state attorneys general are authorized to bring civil actions seeking either injunctions or damages in response to violations that threaten the privacy of state residents. Although we have implemented security measures to prevent unauthorized access to patient data, such data is currently accessible through multiple channels, and there is no guarantee we can protect our data from breach. Unauthorized access, loss, or dissemination could also damage our reputation or disrupt our operations, including our ability to conduct our analyses, deliver test results, process claims and appeals, provide customer assistance, conduct research and development activities, collect, process and prepare company financial information, provide information about our tests and other patient and physician education and outreach efforts through our website, and manage the administrative aspects of our business.

We may collect, process, use or transfer personal information from individuals located in the European Union in connection with our business, including in connection with conducting clinical trials in the European Union. Additionally, if any of our product candidates are approved, we may seek to commercialize those products in the European Union. The collection and use of personal health data in the European Union are governed by laws, regulations, and directives, including the General Data Protection Regulation (EU) 2016/679 (GDPR). This legislation imposes requirements relating to having legal bases for processing personal information relating to identifiable individuals and transferring such information outside of the European Economic Area, including to the United States, providing details to those individuals regarding the processing of their personal information, keeping personal information secure, having data processing agreements with third parties who

 

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process personal information, responding to individuals’ requests to exercise their rights in respect of their personal information, reporting security breaches involving personal data to the competent national data protection authority and affected individuals, appointing data protection officers, conducting data protection impact assessments and record-keeping. This legislation imposes significant responsibilities and liabilities in relation to personal data that we process, and we may be required to put in place additional mechanisms ensuring compliance. In particular, with respect to cross-border transfers of personal data, judicial and regulatory developments in the European Union have created uncertainty. In a decision issued by the Court of Justice of the European Union (“CJEU”) on July 16, 2020, the CJEU invalidated one mechanism for cross-border personal data transfer, the EU-U.S. Privacy Shield, and imposed additional obligations on companies, including us, relying on standard contractual clauses (“SCCs”) issued by the European Commission for cross-border personal data transfers. The European Commission released new SCCs designed to address the CJEU concerns on June 4, 2021. We have undertaken certain efforts to conform transfers of personal data from the European Economic Area (“EEA”) to the United States to our understanding of current regulatory obligations and guidance of data protection authorities, but the CJEU’s decision, the revised SCCs, regulatory guidance and opinions, and other developments relating to cross-border data transfer may require us to implement additional contractual and technical safeguards for any personal data transferred out of the EEA, which may increase compliance costs, lead to increased regulatory scrutiny or liability, may require additional contractual negotiations, and may adversely impact our business, financial condition and operating results. Any actual or alleged failure to comply with the requirements of the GDPR or other laws, regulations, and directives of the member states of the European Union may result in substantial fines, other administrative penalties and civil claims being brought against us, which could have a material adverse effect on our business, financial condition and results of operations.

In addition, U.S. states are adopting new laws or amending existing laws and regulations, requiring attention to frequently changing regulatory requirements applicable to data related to individuals. For example, California has enacted the California Consumer Privacy Act (“CCPA”). The CCPA gives California residents expanded rights to access and delete their personal information, opt out of certain personal information sharing and receive detailed information about how their personal information is used by requiring covered companies to provide new disclosures to California consumers (as that term is broadly defined and which can include any of our current or future employees who may be California residents or any other California residents whose data we collect or process) and provide such residents new ways to opt out of certain sales of personal information. The CCPA provides for civil penalties for violations, as well as a private right of action for data breaches that is expected to increase data breach litigation. As we expand our operations and trials (both preclinical or clinical), the CCPA may increase our compliance costs and potential liability. Additionally, a new privacy law, the California Privacy Rights Act (“CPRA”), was approved by California voters in the election on November 3, 2020. The CPRA creates obligations relating to consumer data beginning on January 1, 2022, with implementing regulations expected on or before July 1, 2022, and enforcement beginning July 1, 2023. The CPRA modifies the CCPA significantly, potentially resulting in further uncertainty and requiring us to incur additional costs and expenses in an effort to comply. Additionally, other U.S. states continue to propose, and in certain cases adopt, privacy-focused legislation such as Colorado, Virginia, and Utah. Aspects of these state laws remain unclear, resulting in further uncertainty and potentially requiring us to modify our data practices and policies and to incur substantial additional costs and expenses in an effort to comply.

Failure to comply with U.S. and international data protection laws and regulations could result in government enforcement actions (which could include civil or criminal penalties), private litigation, and/or adverse publicity and could negatively affect our operating results and business. Moreover, patients about whom we or our partners obtain information, as well as the providers who share this information with us, may contractually limit our ability to use and disclose the information. Claims that we have violated individuals’ privacy rights, failed to comply with data protection laws or breached our contractual obligations, even if we are not found liable, could be expensive and time-consuming to defend and could result in adverse publicity that could harm our business.

 

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If we or third parties fail to adequately safeguard confidential personal, employee, or patient data, or if such information or data are wrongfully used by us or third parties or disclosed to unauthorized persons or entities, our reputation could suffer and we could be subject to claims for damages or other liabilities, regulatory investigations and enforcement action, litigation, the imposition of fines or other penalties, and significant costs for remediation. Any of these risks could have a material adverse effect on our business, financial condition, results of operations, or prospects.

Risks Related to Apexigen’s Employee Matters, Managing Growth and Other Risks Related to Apexigen’s Business

Our success is highly dependent on the services of our President and Chief Executive Officer, Dr. Xiaodong Yang, and our other senior management, and our ability to attract and retain highly skilled executive officers and employees.

To succeed, we must recruit, retain, manage, and motivate qualified clinical, scientific, technical, and management personnel, and we face significant competition for experienced personnel, especially in the biotechnology industry in the San Francisco Bay Area of California. We are highly dependent on the principal members of our management and scientific and medical staff, particularly our President and Chief Executive Officer, Dr. Xiaodong Yang. If we do not succeed in attracting and retaining qualified personnel, particularly at the management level, it could adversely affect our ability to execute our business plan and harm our operating results. In particular, the loss of one or more of our executive officers, including Dr. Yang, could be detrimental to us if we cannot recruit suitable replacements in a timely manner. The competition for qualified personnel in the biotechnology field is intense and as a result, we may be unable to continue to attract and retain qualified personnel necessary for the future success of our business. In addition to competition for personnel, the San Francisco Bay Area in particular is characterized by a high cost of living. We could in the future have difficulty attracting experienced personnel to our company and may be required to expend significant financial resources in our employee recruitment and retention efforts.

Many of the other biotechnology companies that we compete against for qualified personnel have greater financial and other resources, different risk profiles and a longer history in the industry than we do. They also may provide more diverse opportunities and better prospects for career advancement. Some of these characteristics may be more appealing to high-quality candidates than what we have to offer. If we are unable to continue to attract and retain high-quality personnel, the rate and success at which we can discover, develop, and commercialize our product candidates will be limited and the potential for successfully growing our business will be harmed.

In order to successfully implement our plans and strategies, we will need to grow the size of our organization, and we may experience difficulties in managing this growth.

As of March 31, 2022, Apexigen had 27 full-time employees, 20 of whom were engaged in research and development activities. In order to successfully implement our development and commercialization plans and strategies, and as we transition into operating as a public company after the Business Combination, we expect to need additional managerial, operational, sales, marketing, financial, and other personnel. Future growth would impose significant added responsibilities on members of management, including:

 

   

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.

 

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Our future financial performance and our ability to successfully develop and, if approved, commercialize our current and any future product candidates will depend, in part, on our ability to effectively manage any future growth, and our management may also have to divert a disproportionate amount of its attention away from day-to-day activities in order to devote a substantial amount of time to managing these growth activities.

We currently rely, and for the foreseeable future will continue to rely, in substantial part on certain independent organizations, advisors and consultants to provide certain services, including substantially all aspects of clinical management and manufacturing. We cannot assure you that the services of independent organizations, advisors and consultants will continue to be available to us on a timely basis when needed, or that we can find qualified replacements. In addition, if we are unable to effectively manage our outsourced activities or if the quality or accuracy of the services provided by third party service providers is compromised for any reason, our clinical trials may be extended, delayed or terminated, and we may not obtain marketing approval of our current and any future product candidates or otherwise advance our business. We cannot assure you that we will manage our existing third-party service providers or find other competent outside contractors and consultants on economically reasonable terms, or at all.

If we are not able to effectively expand our organization by hiring new employees and/or engaging additional third-party service providers, we may not successfully implement the tasks necessary to further develop and commercialize our current and any future product candidates and, accordingly, may not achieve our research, development, and commercialization goals.

If we are unable to establish sales or marketing capabilities or enter into agreements with third parties to sell or market our product candidates after any approvals, we may not successfully sell or market our product candidates that obtain regulatory approval.

We currently do not have and have never had a marketing or sales team for the marketing, sales and distribution of any of our product candidates that may obtain regulatory approval in the future. In order to commercialize any product candidates, we must build marketing, sales, distribution, managerial, and other non-technical capabilities or make arrangements with third parties to perform these services for each of the territories in which we may have approval to sell or market our product candidates. We may not be successful in accomplishing these required tasks.

Establishing an internal sales or marketing team with technical expertise and supporting distribution capabilities to commercialize our product candidates will be expensive and time-consuming, and will require significant attention of our executive officers to manage. Any failure or delay in the development of our internal sales, marketing, and distribution capabilities could adversely impact the commercialization of any of our product candidates that we obtain approval to market, if we do not have arrangements in place with third parties to provide such services on our behalf. Alternatively, if we choose to collaborate, either globally or on a territory-by-territory basis, with third parties that have direct sales forces and established distribution systems, either to augment our own sales force and distribution systems or in lieu of our own sales force and distribution systems, we will be required to negotiate and enter into arrangements with such third parties relating to the proposed collaboration. If we are unable to enter into such arrangements when needed on acceptable terms, or at all, we may not successfully commercialize any of our product candidates that receive regulatory approval or any such commercialization may experience delays or limitations. If we are unable to successfully commercialize our approved product candidates, either on our own or through collaborations with one or more third parties, our future product revenue will suffer and we may incur significant additional losses.

Our anticipated international operations may expose us to business, regulatory, political, operational, financial, pricing, and reimbursement risks associated with doing business outside of the United States.

Our business strategy incorporates potential international expansion as we seek to obtain regulatory approval for, and commercialize, our current and any future product candidates in patient populations outside the

 

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United States. If our product candidates are approved, we may hire sales representatives and conduct physician and patient association outreach activities outside of the United States. Doing business internationally involves a number of risks, including:

 

   

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.

Any of these factors could significantly harm our future international expansion and operations and, consequently, our results of operations.

Risks Related to Apexigen’s Intellectual Property

If we are unable to obtain, maintain or protect intellectual property rights in any products we develop and in our technology, or if the scope of the intellectual property protection obtained is not sufficiently broad, third parties could develop and commercialize products and technology similar or identical to ours, and we may not compete effectively in our market.

Our success depends in significant part on our and our current or future licensors’ ability to obtain, maintain and protect patents and other intellectual property rights and operate without infringing, misappropriating, or otherwise violating the intellectual property rights of others. We have filed numerous patent applications both in the United States and in foreign jurisdictions to obtain patent rights to inventions we have developed that are important to our business, including related to our product candidates. We have also licensed from third parties rights to patents and other intellectual property, including from Epitomics, Inc., an Abcam Company (“Epitomics”), with respect to rabbit monoclonal antibodies generated using Epitomics’ technology in the field of pharmaceutical products for human or veterinary use. If we or our licensors are unable to obtain or maintain patent protection with respect to such inventions and technology, our business, financial condition, results of operations, and prospects could be materially harmed.

 

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The patent prosecution process is expensive, time-consuming, and complex, and we and our current or future licensors may not prepare, file, prosecute, maintain, and enforce all necessary or desirable patent applications at a reasonable cost or in a timely manner. Patents may be invalidated and patent applications may not be granted for a number of reasons, including known and unknown prior art, deficiencies in the patent applications or the lack of novelty of the underlying inventions or technology. It is also possible that we or our current and future licensors will fail to identify patentable aspects of inventions made in the course of research, development and commercialization activities in time to obtain patent protection. Although we enter into non-disclosure and confidentiality agreements with parties who have access to confidential or patentable aspects of our research, development, and commercialization activities, such as our employees, collaborators, CROs, consultants, advisors and other third parties, any of these parties may breach the agreements and disclose such activities before a patent application is filed, thereby jeopardizing our ability to seek patent protection. In addition, publications of discoveries in the scientific literature often lag behind actual discoveries, and patent applications in the United States and other jurisdictions are typically not published until 18 months after filing, or in some cases not at all. Therefore, we cannot be certain that we or our current or future licensors were the first to make the inventions claimed in our owned or any licensed patents or patent applications, or that we or our current or future licensors were the first to file for patent protection of such inventions.

Moreover, in some circumstances, we may not have the right to control the preparation, filing, prosecution, maintenance, enforcement, and defense of patents and patent applications covering technology that we license from third parties and are reliant on our current and future licensors. For example, pursuant to our license agreement with Epitomics, Inc., Epitomics is responsible for the filing, prosecution and maintenance of the patents and patent applications licensed to us. Therefore, these patents and applications may not be prepared, filed, prosecuted, maintained, enforced and defended in a manner consistent with the best interests of our business. If our current or future licensors fail to prosecute, maintain, enforce or defend such patents and other intellectual property rights, are not fully cooperative or disagree with us as to the prosecution, maintenance or enforcement of any patent rights, or lose rights to those patents or patent applications, the rights we have licensed may be reduced or eliminated, and our right to develop and commercialize any of our product candidates that are the subject of such licensed rights could be adversely affected.

The patent position of biotechnology companies generally is highly uncertain, involves complex legal and factual questions and has in recent years been the subject of much litigation. As a result, the issuance, scope, validity, enforceability and commercial value of our and our current or future licensors’ patent rights are highly uncertain. Our and our current or future licensors’ pending and future patent applications may not result in patents being issued which protect our technology or products, in whole or in part, or which effectively prevent others from commercializing competitive technologies and products. Moreover, the patent examination process may require us or our current and future licensors to narrow the scope of the claims of our or our current and future licensors’ pending and future patent applications, which may limit the scope of patent protection that may be obtained. Additionally, the scope of patent protection can be reinterpreted after issuance. Even if our or our current or future licensors’ pending and future patent applications issue as patents, they may not issue in a form that will provide us with any meaningful protection, prevent competitors or other third parties from competing with us, or otherwise provide us with any competitive advantage. Any patents that we hold or in-license may be challenged, narrowed, circumvented, or invalidated by third parties in court or in patent offices in the United States and abroad. Our and our current or future licensors’ patent applications cannot be enforced against third parties practicing the technology claimed in such applications unless and until a patent issues from such applications, and then only to the extent the issued claims cover the technology. Our competitors or other third parties may also circumvent our patents by developing similar or alternative technologies or products in a non-infringing manner.

We cannot assure you that we have found all of the potentially relevant prior art relating to our patents and patent applications. If such prior art exists, it can invalidate a patent or prevent a patent from issuing from a pending patent application. For example, there are a number of third-party patents and patent applications relating to the engineering of antibodies, including with respect to the CD40 binding and fragment crystallizable

 

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(Fc) domains, that may have earlier priority or publication dates and may be asserted as prior art against our patents and patent applications. Even if our patents do issue and even if such patents cover our product candidates, third parties may initiate oppositions, interferences, re-examinations, post-grant reviews, inter partes reviews, nullification or derivation actions in court or before patent offices, or similar proceedings challenging the inventorship, validity, enforceability or scope of such patents, which may result in the patent claims being narrowed or invalidated. An adverse determination in any such proceeding or litigation could reduce the scope of, or invalidate, the patent rights we own or license, allow third parties to commercialize our technology or products and compete directly with us, without payment to us.

Moreover, we, or our current or future licensors, may have to participate in interference proceedings declared by the United States Patent and Trademark Office (“USPTO”) to determine priority of invention or in post-grant challenge proceedings, such as oppositions in a foreign patent office, that challenge priority of invention or other features of patentability. Such challenges may result in loss of patent rights, loss of exclusivity, or in patent claims being narrowed, invalidated, or held unenforceable, which could limit our ability to stop others from using or commercializing similar or identical technology and products, or limit the duration of the patent protection of our technology and product candidates, including sotigalimab. Such proceedings also may result in substantial cost and require significant time from our scientists and management, even if the eventual outcome is favorable to us. Consequently, we do not know whether any of our technology or product candidates will be protectable or remain protected by valid and enforceable patents.

Because patent applications in the United States and most other countries are confidential for a period of time after filing, and some remain so until issued, we cannot be certain that we or our current and future licensors were the first to file any patent application related to a product candidate. Furthermore, if third parties have filed such patent applications on or before March 15, 2013, an interference proceeding in the United States can be initiated by such third parties to determine who was the first to invent any of the subject matter covered by the patent claims of our applications. If third parties have filed such applications after March 15, 2013, a derivation proceeding in the United States can be initiated by such third parties to determine whether our invention was derived from theirs. Even where we have a valid and enforceable patent, we may not exclude others from practicing our invention where the other party can show that they used the invention in commerce before our filing date or the other party benefits from a compulsory license.

We may not protect our intellectual property rights throughout the world.

Filing, prosecuting, enforcing, and defending patents on product candidates in all countries throughout the world would be prohibitively expensive, and our or our current and future licensors’ intellectual property rights may not exist in some countries outside the United States or may be less extensive in some countries than in the United States. In addition, the laws of some foreign countries do not protect intellectual property rights to the same extent as federal and state laws in the United States. Consequently, we and our current and future licensors may not prevent third parties from practicing our and our current or future licensors’ inventions in all countries outside the United States, or from selling or importing products made using our and our current or future licensors’ inventions in and into the United States or other jurisdictions. Competitors may use our and our current or future licensors’ technologies in jurisdictions where we have not obtained patent protection to develop their own products and, further, may export otherwise infringing products to territories where we and our current and future licensors have patent protection, but enforcement is not as strong as that in the United States. These products may compete with our product candidates, and our and our current or future licensors’ patents or other intellectual property rights may not be effective or sufficient to prevent them from competing.

Many companies have encountered significant problems in protecting and defending intellectual property rights in foreign jurisdictions. The legal systems of certain countries, particularly certain developing countries, do not favor the enforcement of patents, trade secrets, and other intellectual property protection, particularly those relating to biotechnology, which could make it difficult for us and our current and future licensors to stop the infringement of our and our current or future licensors’ patents or marketing of competing products in violation

 

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of our and our current or future licensors’ intellectual property and proprietary rights generally. Proceedings to enforce our and our current or future licensors’ intellectual property and proprietary rights in foreign jurisdictions could result in substantial costs and divert our and our current or future licensors’ efforts and attention from other aspects of our business, could put our and our current or future licensors’ patents at risk of being invalidated or interpreted narrowly, could put our and our current or future licensors’ patent applications at risk of not issuing, and could provoke third parties to assert claims against us or our current and future licensors. We or our current and future licensors may not prevail in any lawsuits that we or our current and future licensors initiate, and the damages or other remedies awarded, if any, may not be commercially meaningful. Some jurisdictions may refuse to honor intellectual property rights due to legislation or geopolitical reasons, such as Russia recently stating that it will not honor patent rights of companies from countries that have imposed sanctions on Russia in response to the war in Ukraine. Accordingly, our and our current and future licensors’ efforts to enforce intellectual property and proprietary rights around the world may be inadequate to obtain a significant commercial advantage from the intellectual property that we develop or license.

Many countries have compulsory licensing laws under which a patent owner may be compelled to grant licenses to third parties. In addition, many countries limit the enforceability of patents against government agencies or government contractors. In these countries, the patent owner may have limited remedies, which could materially diminish the value of such patent. If we or our current and future licensors are forced to grant a license to third parties with respect to any patents relevant to our business, our competitive position may be impaired, and our business, financial condition, results of operations, and prospects may be adversely affected.

Changes in patent law could diminish the value of patents in general, thereby impairing our ability to protect our product candidates.

Obtaining and enforcing patents in the biopharmaceutical industry involves both technological and legal complexity and is therefore costly, time-consuming, and inherently uncertain. Changes in either the patent laws or interpretation of the patent laws in the United States could increase the uncertainties and costs surrounding the prosecution of patent applications and the enforcement or defense of issued patents. Recent patent reform legislation in the United States and other countries, including the Leahy-Smith America Invents Act (“Leahy-Smith Act”), could increase those uncertainties and costs. The Leahy-Smith Act includes provisions that affect the way patent applications are prosecuted, redefine prior art, and provide more efficient and cost-effective avenues for competitors to challenge the validity of patents, and may also affect patent litigation. These include allowing third-party submission of prior art to the USPTO during patent prosecution and additional procedures to attack the validity of a patent by USPTO administered post-grant proceedings, including post-grant review, inter partes review, and derivation proceedings. In addition, assuming that other requirements for patentability are met, prior to March 15, 2013, in the United States, the first to invent the claimed invention was entitled to the patent, while outside the United States, the first to file a patent application was entitled to the patent. After March 15, 2013, under the Leahy-Smith Act, the United States transitioned to a first inventor to file system in which, assuming that the other statutory requirements are met, the first inventor to file a patent application will be entitled to the patent on an invention regardless of whether a third party was the first to invent the claimed invention. However, the Leahy-Smith Act and its implementation could increase the uncertainties and costs surrounding the prosecution of our patent applications and the enforcement or defense of our issued patents, all of which could have a material adverse effect on our business, financial condition, results of operations, and prospects.

In addition, the U.S. Supreme Court has ruled on several patent cases in recent years, either narrowing the scope of patent protection available in certain circumstances or weakening the rights of patent owners in certain situations. This combination of events has created uncertainty with respect to the validity and enforceability of patents, once obtained. Depending on future actions by the U.S. Congress, the U.S. courts, the USPTO and the relevant law-making bodies in other countries, the laws and regulations governing patents could change in unpredictable ways that would weaken our ability to obtain new patents or to enforce our existing patents and patents that we might obtain in the future.

 

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Obtaining and maintaining our patent protection depends on compliance with various procedural, document submission, fee payment, and other requirements imposed by governmental patent agencies, and our patent protection could be reduced or eliminated for non-compliance with these requirements.

Periodic maintenance fees, renewal fees, annuity fees, and various other government fees on any issued patent or patent application are due to be paid to the USPTO and various government patent agencies outside of the United States in several stages over the lifetime of our owned or licensed patents and applications. The USPTO and various non-U.S. governmental patent agencies require compliance with a number of procedural, documentary, fee payment, and other similar provisions during the patent application process. While an inadvertent lapse can, in some cases, be cured by payment of a late fee or by other means in accordance with the applicable rules, there are situations in which non-compliance can result in abandonment or lapse of the patent or patent application, resulting in a partial or complete loss of patent rights in the relevant jurisdiction. Non-compliance events that could result in abandonment or lapse of a patent or patent application include failure to respond to official actions within prescribed time limits, non-payment of fees, and failure to properly legalize and submit formal documents. If we or our current and future licensors fail to maintain the patents and patent applications covering our product candidates, our patent protection could be reduced or eliminated and our competitors might be better able to enter the market with competing products or technology, which could have a material adverse effect on our business, financial condition, results of operation, and prospects.

If we fail to comply with our obligations in the agreements under which we license intellectual property rights from third parties or otherwise experience disruptions to our business relationships with our licensors, we could lose the ability to continue the development and commercialization of our product candidates.

We are a party to a number of intellectual property and technology licenses that are important to our business. For example, Apexigen obtained an exclusive license from Epitomics under certain intellectual property related to rabbit monoclonal antibodies generated using Epitomics’ technology in the field of pharmaceutical products for human or veterinary use that has certain ongoing payment and other obligations even though the license agreement has now expired. In addition, if we fail to comply with our obligations under these technology agreements, including payment and diligence terms, or other specified events occur such as our insolvency, our current and future licensors may have the right to terminate these agreements, in which event we may not develop, manufacture, market or sell any product that is covered by these agreements or may face other penalties under the agreements. Such an occurrence could adversely affect the value of the technology or product candidate being developed or licensed under any such agreement. Termination of these agreements or reduction or elimination of our rights under these agreements may result in our having to negotiate new or reinstated agreements, which may not be available to us on equally favorable terms, or at all, or cause us to lose our rights under these agreements, including our rights to intellectual property or technology important to our development programs.

Disputes may arise regarding intellectual property subject to a licensing agreement, including:

 

   

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.

 

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In addition, the agreements under which Apexigen licenses intellectual property or technology from third parties are generally complex, and certain provisions in such agreements may be susceptible to multiple interpretations. The resolution of any contract interpretation disagreement that may arise could narrow what we believe to be the scope of our rights to the relevant intellectual property or technology, or increase what we believe to be our financial or other obligations under the relevant agreement, either of which could have a material adverse effect on our business, financial condition, result of operations, and prospects. Moreover, if disputes over intellectual property that we have licensed prevent or impair our ability to maintain our current licensing arrangements on commercially acceptable terms, we may be unable to successfully develop and commercialize the affected product candidates, which could have a material adverse effect on our business, financial conditions, results of operations, and prospects.

We may not succeed in obtaining necessary rights to any product candidates we may develop through acquisitions and in-licenses.

A third party may hold intellectual property, including patent rights, that are important or necessary to the development of our current or future product candidates. In order to avoid infringing these third-party patents, we may find it necessary or prudent to obtain licenses from such third-party intellectual property holders. Moreover, we may need to obtain additional licenses from our existing licensors and others to advance our research or allow commercialization of product candidates we may develop. In addition, with respect to any patents we co-own with third parties, we may require licenses to such co-owners’ interest to such patents. However, we may be unable to secure such licenses or otherwise acquire or in-license any compositions, methods of use, processes, or other intellectual property rights from third parties that we identify as necessary for product candidates we develop. The licensing or acquisition of third-party intellectual property rights is a competitive area, and several more established companies may pursue strategies to license or acquire third-party intellectual property rights that we may consider attractive or necessary. These established companies may have a competitive advantage over us due to their size, capital resources and greater clinical development or commercialization capabilities. In addition, companies that perceive us to be a competitor may be unwilling to assign or license rights to us. As a result, we may be unable to obtain any such licenses at a reasonable cost or on reasonable terms, if at all. In that event, we may be required to expend significant time and resources to redesign our technology, product candidates, or the methods for manufacturing them, or to develop or license replacement technology, all of which may not be feasible on a technical or commercial basis. If we are unable to do so, we may be unable to develop or commercialize the affected product candidates, which could harm our business, financial condition, results of operations, and prospects significantly. In addition, even if we obtain a license, it may be non-exclusive, thereby giving our competitors access to the same technologies licensed to us, and it could require us to make substantial licensing and royalty payments, which could have a material adverse effect on our business, financial condition, results of operations, and prospects.

Moreover, some of our owned and in-licensed patents and patent applications are, and may in the future be, co-owned with third parties. If we are unable to obtain an exclusive license to any such third-party co-owners’ interest in such patents or patent applications, such co-owners may license their rights to other third parties, including our competitors, and such third parties could market competing products and technology. In addition, we may need the cooperation of any such co-owners of our patents in order to enforce such patents against third parties, and such cooperation may not be provided to us. Any of the foregoing could have a material adverse effect on our competitive position, business, financial conditions, results of operations, and prospects.

Third parties may initiate legal proceedings against us alleging that we infringe, misappropriate, or otherwise violate their intellectual property rights, or we may initiate legal proceedings against third parties to challenge the validity or scope of intellectual property rights controlled by third parties, the outcome of which would be uncertain and could have an adverse effect on the success of our business.

Our commercial success depends upon our ability to develop, manufacture, market and sell our product candidates and use our and our current or future licensors’ proprietary technologies without infringing,

 

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misappropriating, or otherwise violating the intellectual property rights of third parties. The biotechnology and pharmaceutical industries are characterized by extensive litigation regarding patents and other intellectual property rights. Third parties may initiate legal proceedings against us or our current and future licensors alleging that we or our current and future licensors infringe, misappropriate, or otherwise violate their intellectual property rights. In addition, we or our current and future licensors may initiate legal proceedings against third parties to challenge the validity or scope of intellectual property rights controlled by third parties, including in oppositions, interferences, reexaminations, inter partes reviews, or derivation proceedings in the United States or other jurisdictions. These proceedings can be expensive and time-consuming, and many of our or our current and future licensors’ adversaries in these proceedings may have the ability to dedicate substantially greater resources to prosecuting these legal actions than we or our current and future licensors.

There are third-party patents and, if issued as patents, patent applications relating to the engineering of antibodies, including with respect to CD40 and Fc domains, that may be construed to cover our product candidates, including sotigalimab. The third parties that control these patents may allege that our product candidates, including sotigalimab, infringe these patents. Parties making infringement, misappropriation, or other intellectual property claims against us may obtain injunctive or other equitable relief, which could effectively block our ability to further develop and commercialize one or more of our product candidates. Defense of these claims, regardless of their merit, would involve substantial litigation expense and would be a substantial diversion of management and employee resources from our business. In addition, even if we believe any third-party intellectual property claims are without merit, there is no assurance that a court would find in our favor on questions of validity, enforceability, priority, or non-infringement. A court of competent jurisdiction could hold that such third-party patents are valid, enforceable, and infringed, which could materially and adversely affect our ability to commercialize any of our products or technologies covered by the asserted third-party patents. In order to successfully challenge the validity of any such third-party U.S. patents in federal court, we would need to overcome a presumption of validity. As this burden is a high one requiring us to present clear and convincing evidence as to the invalidity of any such U.S. patent claim, there is no assurance that a court of competent jurisdiction would invalidate the claims of any such U.S. patent. An unfavorable outcome could require us or our current and future licensors to cease using the related technology or developing or commercializing our product candidates, or to attempt to license rights to it from the prevailing party. Our business could be harmed if the prevailing party does not offer us or our current and future licensors a license on commercially reasonable terms or at all. Even if we or our current and future licensors obtain a license, it may be non-exclusive, thereby giving our competitors access to the same technologies licensed to us or our current and future licensors, and it could require us to make substantial licensing and royalty payments. In addition, we could be found liable for monetary damages, including treble damages and attorneys’ fees, if we are found to have willfully infringed a patent. A finding of infringement, misappropriation, or other violation of third-party intellectual property could prevent us from commercializing our product candidates or force us to cease some of our business operations, which could harm our business. Claims that we have misappropriated the confidential information or trade secrets of third parties could have a similar material adverse effect on our business, financial condition, results of operations, and prospects.

We may be subject to claims by third parties asserting that we or our employees, consultants, or advisors have misappropriated their intellectual property, or claiming ownership of what we regard as our own intellectual property.

Many of our employees, consultants, and advisors, including our senior management, were previously employed at other biopharmaceutical companies, including our competitors or potential competitors. Some of these employees executed proprietary rights, non-disclosure, and/or non-competition agreements in connection with such previous employment. Although we try to ensure that our employees, consultants, and advisors do not use the proprietary information or know-how of others in their work for us, we may be subject to claims that we or these individuals have used or disclosed confidential information or intellectual property, including trade secrets or other proprietary information, of any such individual’s current or former employer. Litigation may be necessary to defend against these claims. If we fail in prosecuting or defending any such claims, in addition to

 

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paying monetary damages, we may lose valuable intellectual property rights or personnel. Such intellectual property rights could be awarded to a third party, and we could be required to obtain a license from such third party to commercialize our technology or products. Such a license may not be available on commercially reasonable terms, or at all. Even if we successfully prosecute or defend against such claims, litigation could result in substantial costs and distract management.

In addition, while it is our policy to require our employees and contractors who may be involved in the conception or development of intellectual property to execute agreements assigning such intellectual property to us, we may be unsuccessful in executing such an agreement with each party who, in fact, conceives or develops intellectual property that we regard as our own. The assignment of intellectual property rights may not be self-executing, or the assignment agreements may be breached, and we may be forced to bring claims against third parties, or defend claims that they may bring against us, to determine the ownership of what we regard as our intellectual property. Such claims could have a material adverse effect on our business, financial condition, results of operations, and prospects.

Our inability to protect our confidential information and trade secrets would harm our business and competitive position.

In addition to seeking patents for some of our technology and products, we also rely on trade secrets, including unpatented know-how, technology and other proprietary information to maintain our competitive position. Trade secrets can be difficult to protect. We seek to protect these trade secrets, in part, by entering into non-disclosure and confidentiality agreements with parties who have access to them, such as our employees, corporate collaborators, outside scientific collaborators, CROs, contract manufacturers, consultants, advisors, and other third parties. We also enter into confidentiality agreements with our employees and consultants. We cannot guarantee that we have entered into such agreements with each party that may have or have had access to our trade secrets or proprietary technology and processes. Despite these efforts, any of these parties may breach the agreements and disclose our proprietary information, including our trade secrets, and we may not obtain adequate remedies for such breaches. Misappropriation or unauthorized disclosure of our trade secrets could significantly affect our competitive position and may have a material adverse effect on our business. Enforcing a claim that a party illegally disclosed or misappropriated a trade secret is difficult, expensive and time-consuming, and the outcome is unpredictable. Some courts both within and outside the United States may be less willing or unwilling to protect trade secrets. Furthermore, trade secret protection does not prevent competitors from independently developing substantially equivalent information and techniques and we cannot guarantee that our competitors will not independently develop substantially equivalent information and techniques. If a competitor lawfully obtained or independently developed any of our trade secrets, we would have no right to prevent such competitor from using that technology or information to compete with us. Failure on our part to adequately protect our trade secrets and our confidential information would harm our business and our competitive position.

Issued patents covering one or more of our product candidates or technologies could be found invalid or unenforceable if challenged in court.

To protect our competitive position, we may from time to time need to resort to litigation in order to enforce or defend any patents or other intellectual property rights owned by or licensed to us, or to determine or challenge the scope or validity of patents or other intellectual property rights of third parties. Enforcement of intellectual property rights is difficult, unpredictable, and expensive, and many of our or our licensors’ or collaboration partners’ adversaries in these proceedings may have the ability to dedicate substantially greater resources to prosecuting these legal actions than we or our licensors or collaboration partners can. Accordingly, despite our or our licensors’ or collaboration partners’ efforts, we or our licensors or collaboration partners may not prevent third parties from infringing upon or misappropriating intellectual property rights we own or control, particularly in countries where the laws may not protect those rights as fully as in the European Union and the United States. We may fail in enforcing our rights—in which case our competitors may be permitted to use our technology without being required to pay us any license fees. In addition, however, litigation involving our

 

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patents carries the risk that one or more of our patents will be held invalid (in whole or in part, on a claim-by-claim basis) or held unenforceable. Such an adverse court ruling could allow third parties to commercialize our products or use our technologies, including our APXiMAB platform, and then compete directly with us, without payment to us.

If we or one of our licensors were to initiate legal proceedings against a third party to enforce a patent covering one of our products, the defendant could counterclaim that such patent is invalid or unenforceable. In patent litigation in the United States or in Europe, defendant counterclaims alleging invalidity or unenforceability are commonplace. A claim for a validity challenge may be based on failure to meet any of several statutory requirements, for example, lack of novelty, obviousness, or non-enablement. A claim for unenforceability could involve an allegation that someone connected with prosecution of the patent withheld relevant information from the European Patent Office or the USPTO or made a misleading statement, during prosecution. Third parties may also raise similar claims before the USPTO or an equivalent foreign body, even outside the context of litigation. Potential proceedings include re-examination, post-grant review, inter partes review, interference proceedings, derivation proceedings, and equivalent proceedings in foreign jurisdictions (e.g., opposition proceedings). Such proceedings could result in the revocation of, cancellation of, or amendment to our patents in such a way that they no longer cover our technology or any product candidates that we may develop. The outcome following legal assertions of invalidity and unenforceability during patent litigation is unpredictable. With respect to the validity question, for example, we cannot be certain that there is no invalidating prior art, of which we or our licensing partners and the patent examiner were unaware during prosecution. If a defendant were to prevail on a legal assertion of invalidity or unenforceability, we would lose at least part, and perhaps all, of the patent protection on one or more of our product candidates or certain aspects of our APXiMAB platform technologies. Such a loss of patent protection could have a material adverse impact on our business, financial condition, results of operations, and prospects. Further, litigation could result in substantial costs and diversion of management resources, regardless of the outcome, and this could harm our business and financial results. Patents and other intellectual property rights also will not protect our technology if competitors design around our protected technology without infringing our patents or other intellectual property rights.

We may become involved in disputes or lawsuits to protect or enforce our patents or other intellectual property, which could be expensive, time-consuming, unsuccessful, and lead to challenges to our intellectual property ownership.

Competitors and other third parties may infringe, misappropriate, or otherwise violate our issued patents or other intellectual property or the patents or other intellectual property of our licensors, or we or our licensors may be required to defend against claims of infringement, misappropriation, or other violation. In addition, our patents or the patents of our licensors may become involved in inventorship or priority disputes. Other disputes may arise related to intellectual property rights that we believe are derived from, or related to, our patents or technology, including with respect to sotigalimab. For example, Apexigen is aware of certain patent applications filed by a former collaborator covering biomarkers and patient selection discoveries related to our sotiga program. Apexigen believes that we own the intellectual property covered by these provisional patent applications. We are in discussions with the former collaborator to assign their rights in this intellectual property to us, but there is no guarantee that we will come to a satisfactory resolution of this matter.

To counter infringement, misappropriation, or other unauthorized use, we or our licensors may be required to negotiate a solution to such dispute or file infringement claims, either of which can be expensive and time-consuming. Any claims we or our licensors assert against perceived infringers could provoke these parties to assert counterclaims against us or our licensors alleging that we or our licensors infringe their patents or that our or our licensors’ patents are invalid or unenforceable. In a patent infringement proceeding, a court may decide that a patent of ours or one of our licensors’ is invalid or unenforceable, in whole or in part, construe the patent’s claims narrowly or refuse to stop the other party from using the technology at issue on the grounds that our or our licensors’ patents do not cover the technology. An adverse result in any litigation proceeding could put one or more of our owned or licensed patents at risk of being invalidated, held unenforceable, or interpreted narrowly.

 

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We may find it impractical or undesirable to enforce our intellectual property against some third parties. Furthermore, because of the substantial amount of discovery required in connection with intellectual property litigation, there is a risk that some of our confidential information could be compromised by disclosure during this type of litigation.

Interference proceedings provoked by third parties or brought by us or declared by the USPTO may be necessary to determine the priority of inventions with respect to our or our licensors’ patents or patent applications. If we or our licensors are unsuccessful in any interference proceedings to which we or they are subject, we may lose valuable intellectual property rights through the loss of one or more patents owned or licensed or our owned or licensed patent claims may be narrowed, invalidated, or held unenforceable. If we or our licensors are unsuccessful in any interference proceeding or other priority or inventorship dispute, we may be required to obtain and maintain licenses from third parties, including parties involved in any such interference proceedings or other priority of inventorship disputes. Such licenses may not be available on commercially reasonable terms or at all, or may be non-exclusive. If we are unable to obtain and maintain such licenses, we may need to cease the development, manufacture, and commercialization of one or more of the product candidates we may develop. The loss of exclusivity or narrowing of our owned or licensed patent claims could limit our ability to stop others from using or commercializing similar or identical technology and products.

Any of the foregoing intellectual property disputes or litigation could result in a material adverse effect on our business, financial condition, results of operations, or prospects.

Intellectual property litigation or proceedings could cause us to spend substantial resources and distract our personnel.

Even if resolved in our favor, litigation or other legal proceedings relating to intellectual property claims could result in substantial costs and diversion of management resources, which could harm our business. In addition, the uncertainties associated with litigation could compromise our ability to raise the funds necessary to continue our clinical trials, continue our internal research programs or in-license needed technology or other product candidates. There could also be public announcements of the results of the hearing, motions or other interim proceedings or developments. If securities analysts or investors perceive those results to be negative, it could cause the price of shares of our common stock to decline. Such litigation or proceedings could substantially increase our operating losses and reduce the resources available for development activities or any future sales, marketing, or distribution activities. We may not have sufficient financial or other resources to conduct such litigation or proceedings adequately. Most of our competitors are larger than we are and have substantially greater resources. They are, therefore, likely to sustain the costs of complex patent litigation or proceedings more effectively than we can because of their greater financial resources and more mature and developed intellectual property portfolios. Accordingly, despite our efforts, we may not prevent third parties from infringing upon, misappropriating, or otherwise violating our intellectual property. Any of the foregoing events could harm our business, financial condition, results of operations, and prospects.

If we do not obtain patent term extension or data exclusivity for any product candidates we may develop, our business may be materially harmed.

Patents have a limited lifespan. Due to the amount of time required for the development, testing and regulatory review of new product candidates, patents protecting such candidates might expire before or shortly after such candidates are commercialized. As a result, our owned and licensed patent portfolio may not provide us with sufficient rights to exclude others from commercializing products similar or identical to ours. In the United States, if all maintenance fees are timely paid, the natural expiration of a patent is generally 20 years from its earliest U.S. filing date. Various extensions may be available, but the life of a patent, and the protection it affords, is limited. Even if patents covering our product candidates are obtained, once the patent life has expired for a product, we may be open to competition from competitive medications, including biosimilar or generic medications. For example, certain of our owned patents that cover sotigalimab will begin to expire in 2032,

 

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absent extensions, in the United States and similar patent applications are pending in foreign jurisdictions. At the time of the expiration of the relevant patents, the underlying technology covered by such patents can be used by any third party, including competitors. Although the patent term extensions under the Drug Price Competition and Patent Term Restoration Action of 1984 (Hatch-Waxman Act) in the United States may be available to extend the patent term, we cannot provide any assurances that any such patent term extension will be obtained and, if so, for how long.

Depending upon the timing, duration and specifics of any FDA marketing approval of any product candidates we may develop, one or more of our U.S. patents may be eligible for limited patent term extension under the Hatch-Waxman Act. The Hatch-Waxman Act permits a patent term extension of up to five years as compensation for patent term lost during the FDA regulatory review process. A patent term extension cannot extend the remaining term of a patent beyond a total of 14 years from the date of product approval, only one patent may be extended, and only those claims covering the approved drug, a method for using it, or a method for manufacturing it may be extended. However, we may not be granted an extension because of, for example, failing to exercise due diligence during the testing phase or regulatory review process, failing to apply within applicable deadlines, failing to apply prior to expiration of relevant patents, or otherwise failing to satisfy applicable requirements. Moreover, the applicable time period or the scope of patent protection afforded could be less than we request. If we are unable to obtain patent term extension or term of any such extension is less than we request, our competitors may obtain approval of competing products following our patent expiration, and our business, financial condition, results of operations, and prospects could be materially harmed.

If our trademark and tradenames are not adequately protected, then we may not build name recognition in our markets and our business may be adversely affected.

We cannot assure you that competitors will not infringe our trademarks or that we will have adequate resources to enforce our trademarks. We cannot assure you that any future trademark applications that we will file will be approved. During trademark registration proceedings, we may receive rejections and although we are given an opportunity to respond to those rejections, we may be unable to overcome such rejections. In addition, in proceedings before the USPTO and in proceedings before comparable agencies in many foreign jurisdictions, third parties are given an opportunity to oppose pending trademark applications and to seek to cancel registered trademarks. An opposition or cancellation proceeding may be filed against our trademarks and our trademarks may not survive such proceedings, which may force us to rebrand our name.

Intellectual property rights do not necessarily address all potential threats.

The degree of future protection afforded by our intellectual property rights is uncertain because intellectual property rights have limitations and may not adequately protect our business or permit us to maintain our competitive advantage. For example:

 

   

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.

 

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Should any of these events occur, they could have a material adverse effect on our business, financial condition, results of operations, and prospects.

Risks Related to Apexigen’s Dependence on Third Parties

We rely on third parties to conduct our clinical trials and those third parties may not perform satisfactorily, including failing to meet deadlines for the completion of such trials, research and studies.

We do not have the ability to independently conduct our clinical trials. Apexigen currently relies on third parties to conduct clinical trials of its product candidates, including ISTs sponsored by third parties; these third parties also include CROs, clinical data management organizations, medical institutions and clinical investigators. We expect to continue to rely upon third parties to conduct additional clinical trials of our product candidates. Third parties have a significant role in the conduct of our clinical trials and the subsequent collection and analysis of data. These third parties are not our employees, and except for remedies available to us under our agreements, we have limited ability to control the amount or timing of resources that any such third party will devote to our clinical trials. In some cases, these third parties may not provide us with information about the ongoing clinical trials on a timely basis. The third parties may also violate the terms of the agreements governing such clinical trials in various ways, including asserting intellectual property rights that contractually belong to Apexigen. Some of these third parties may terminate their engagements with us at any time. If we need to enter into alternative arrangements, it would delay our drug development activities.

Our reliance on these third parties for research and development activities will reduce our control over these activities but will not relieve us of our regulatory responsibilities. For example, we will remain responsible for ensuring that each of our clinical trials is conducted in accordance with the general investigational plan and protocols for the trial. Moreover, the FDA requires us to comply with GCP standards, regulations for conducting, recording and reporting the results of clinical trials to assure that data and reported results are credible and accurate and that the rights, integrity, and confidentiality of trial participants are protected. The EMA also requires us to comply with similar standards. Regulatory authorities enforce these GCP requirements through periodic inspections of trial sponsors, principal investigators, and trial sites. If we or any of our CROs fail to comply with applicable GCP requirements, the clinical data generated in our clinical trials may be deemed unreliable and the FDA, EMA, or comparable foreign regulatory authorities may require us to perform additional clinical trials before approving our marketing applications. We cannot assure you that upon inspection by a given regulatory authority, such regulatory authority will determine that any of our clinical trials comply with GCP regulations. In addition, our clinical trials must be conducted with product produced under current GMP regulations. Our failure or the failure of the third parties we engage to comply with these regulations may require us to repeat clinical trials, which would delay the marketing approval process. We also are required to register certain ongoing clinical trials and post the results of certain completed clinical trials on a government-sponsored database, ClinicalTrials.gov, within certain timeframes. Failure to do so can result in fines, adverse publicity, and civil and criminal sanctions.

The third parties we rely on for these services may also have relationships with other entities, some of which may be our competitors. If these third parties do not successfully carry out their contractual duties, meet expected deadlines, or conduct our clinical trials in accordance with regulatory requirements or our stated protocols, we will not obtain, or may be delayed in obtaining, marketing approvals for our product candidates and will not be able to, or may be delayed in our efforts to, successfully commercialize our product candidates.

 

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We contract with third parties for the production of sotigalimab and our other product candidates for preclinical studies and our ongoing clinical trials, and expect to continue to do so for additional clinical trials and ultimately for commercialization and for additional product candidates. This reliance on third parties increases the risk that we will not have sufficient quantities of our product candidates or drugs or such quantities at an acceptable cost, which could delay, prevent, or impair our development or commercialization efforts.

We do not currently have the infrastructure or internal capability to manufacture our product candidates for use in clinical development and commercialization. We rely, and expect to continue to rely, on third-party manufacturers for the production of our product candidates in compliance with GMP requirements for clinical trials under the guidance of members of our organization. Apexigen currently relies on a single third-party manufacturer, WuXi Biologics (Hong Kong) Limited (“WuXi”), for the manufacture of our product candidates sotiga and APX601. We expect the quantity and stability of our current supply of sotiga from that prior manufacturer will be sufficient to supply our currently ongoing clinical trials through mid-2023. We plan to undertake our first drug substance manufacturing run at WuXi in mid-2022. If WuXi successfully manufactures sotiga and the FDA and other relevant regulatory authorities approve our comparability protocol, we expect to have sotiga drug product ready for clinical use by mid-2023. If WuXi experiences delays in manufacturing or does not successfully manufacture sotiga or the FDA or other relevant regulatory authorities do not accept our comparability protocol, we may run out of sotiga drug product to supply the clinical development of sotiga by mid-2023.

The manufacture of biologic therapeutics is complex. It is anticipated that during development from early clinical trials to commercialization that changes to the manufacturing cell line, manufacturing process or analytical methods will occur. These changes carry the risk that the intended goals of such changes are not achievable and that further development work may be needed to reach these goals, which may delay our ability to meet clinical or commercial supply needs. Our change in the manufacturing site, cell line, process and analytical methods for sotiga represent a specific elevated risk for the sotiga program. However, Apexigen currently has no alternative manufacturer in place for sotiga and APX601 drug substance and drug product. For the APX601 product candidate, we have successfully completed drug substance runs at WuXi and expect to have APX601 clinical material ready for use in the second half of 2022.

If we were to experience an unexpected loss of supply of our product candidates for any reason, whether as a result of manufacturing, supply, or storage issues or otherwise, we could experience delays, disruptions, suspensions or terminations of, or be required to restart or repeat, any pending or ongoing clinical trials, such as occurred with the prior switchover by Apexigen to a new contract manufacturer. Replacement of our sole manufacturer would likely result in substantial delay and could interrupt our clinical trials if we had not previously obtained enough supply of our product candidates.

We expect to continue to rely on third-party manufacturers for the commercial supply of any of our product candidates for which we obtain marketing approval. We may be unable to maintain or establish required agreements with third-party manufacturers or to do so on acceptable terms. Even if we are able to establish agreements with third-party manufacturers, reliance on third-party manufacturers entails additional risks, including:

 

   

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

 

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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.

We do not have control over many aspects of the manufacturing process of, and are dependent on, our contract manufacturing partners, including WuXi, for compliance with GMP regulations for manufacturing both active drug substances and finished drug products. Third-party manufacturers may not be able to comply with U.S. export control regulations, GMP regulations or similar regulatory requirements outside of the United States. If our contract manufacturers cannot successfully manufacture material that conforms to our specifications and the strict regulatory requirements of the FDA, EMA, or others, they will not secure and/or maintain marketing approval for their manufacturing facilities. In addition, we do not have control over the ability of our contract manufacturers to maintain adequate quality control, quality assurance, and qualified personnel. If the FDA, EMA or a comparable foreign regulatory authority does not approve these facilities for the manufacture of our product candidates or if it withdraws any such approval in the future, we may need to find alternative manufacturing facilities, which would significantly impact our ability to develop, obtain marketing approval for, or market our product candidates, if approved. Our failure, or the failure of our third-party manufacturers, to comply with applicable regulations could result in sanctions being imposed on us, including fines, injunctions, civil penalties, delays, suspension or withdrawal of approvals, license revocation, seizures or recalls of product candidates or drugs, operating restrictions, and criminal prosecutions, any of which could significantly and adversely affect supplies of our drugs and harm our business and results of operations.

Our current and anticipated future dependence upon others for the manufacture of our product candidates or drugs may adversely affect our future profit margins and our ability to commercialize any drugs that receive marketing approval on a timely and competitive basis.

We may not gain the efficiencies we expect from further scale-up of manufacturing of our product candidates, and our third-party manufacturers may be unable to successfully scale up manufacturing in sufficient quality and quantity for our product candidates, which could delay or prevent the conducting of our clinical trials or the development or commercialization of our other product candidates.

We expect that our third-party manufacturer, WuXi, will manufacture our product candidates at a scale and on a timeline that is sufficient for us to complete our planned clinical trials and, if we receive marketing approval, to commercialize our product candidates, including sotigalimab, for the indications we are currently targeting. However, we may consider increasing the batch scale to gain cost efficiencies. If our current manufacturer or any other manufacturer we use is unable to scale-up the manufacture of our product candidates at such time, we may not gain such cost efficiencies and may not realize the benefits that would typically be expected from further scale-up of manufacturing. In addition, quality or other technical issues may arise during scale-up activities. If our third-party manufacturers are unable to successfully scale up the manufacture of our product candidates in sufficient quality and quantity, the development, testing and clinical trials of that product

 

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candidate may be delayed or become infeasible, and marketing approval or commercial launch of any resulting product may be delayed or not obtained, which could significantly harm our business.

Changes in methods of product candidate manufacturing or formulation may result in additional costs or delay.

As product candidates progress through preclinical and late-stage clinical trials to marketing approval and commercialization, it is common that various aspects of the development program, such as manufacturing methods and formulation, are altered along the way in an effort to optimize yield, manufacturing batch size, minimize costs and achieve consistent quality and results. Such changes carry the risk that they will not achieve these intended objectives. Any of these changes could cause our product candidates to perform differently and affect the results of planned clinical trials or other future clinical trials conducted with the altered materials. The FDA may not approve our third-party manufacturers’ processes or facilities. This could delay completion of clinical trials, require the conduct of bridging clinical trials or the repetition of one or more clinical trials, increase clinical trial costs, delay approval of our product candidates, and jeopardize our ability to commercialize our product candidates and generate revenue.

We have and may in the future enter into additional agreements with third parties under which those parties have or will be granted a license to develop product candidates discovered using our APXiMAB platform. If any such programs are not successful or if disputes arise related to such programs, we may not realize the full commercial benefits from such programs.

Our APXiMAB platform has enabled the discovery of several product candidates with potential utility in multiple therapeutic areas and has resulted in five programs that have been licensed to third parties, including larger global biopharmaceutical companies and mid-sized regional or China-focused companies. Our likely counterparties for future licensing and collaboration arrangements include large and mid-size pharmaceutical companies, regional and national pharmaceutical companies, and biotechnology companies. Such arrangements generally allow the licensing parties to control the amount and timing of resources that they dedicate to the development or potential commercialization of any product candidates they develop from the technology we have licensed to them, subject to any territorial or field of use restrictions in the license. In addition, Apexigen partnered with ESBATech AG, which was acquired by Alcon and later Novartis to provide rabbit monoclonal antibodies in order to develop product candidates for certain diseases.

We typically negotiate milestone payments and royalty fees from our licensees that will require various levels of success with their product candidate development program in order for us to generate revenue from them. Our ability to generate revenue from these licensing arrangements will depend on our counterparties’ abilities to successfully develop and commercialize the product candidates they are developing. We cannot predict the success of any licensing program that we enter into or whether such program will lead to any meaningful milestone or royalty revenue to us.

Licensing programs involving third-party development of product candidates derived from our licensed technology pose the following risks to us:

 

   

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;

 

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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.

Beovu® is a drug product developed by Novartis covered under the ESBATech Agreement with Apexigen. Novartis obtained approval for Beovu for use in neovascular (wet) age-related macular degeneration (“AMD”) and as a treatment of visual impairment due to diabetic macular edema, Novartis continues to develop Beovu for other indications. Under the terms of the ESBATech agreement, Novartis is obligated to pay Apexigen a very low single-digit royalty on worldwide net sales of Beovu. However, Novartis has disputed its obligation to pay royalties to Apexigen under the agreement and continues to pay such royalties under protest. As a result, Apexigen has determined that any sales-based royalties received from Novartis for Beovu are currently fully constrained, and Apexigen has recorded the royalty proceeds as deferred revenue on its balance sheet, with the amounts totaling $3.6 million and $4.1 million as of December 31, 2021 and March 31, 2022, respectively. If the dispute with Novartis regarding their royalty obligations is not settled favorably through negotiation or if the parties escalate the dispute through arbitration or litigation, there is no guarantee that we will recognize such historic and future royalty revenue in part or at all, we may be required to return the cash received to date for the constrained royalty payments, we may not receive future payments, and we may incur substantial costs and distraction of management related to such dispute. While this dispute continues, the Beovu royalty rights will be impaired which will limit our ability to exercise ownership over or monetize this royalty stream, all of which could have an adverse effect on our business, financial condition, and results of operations.

 

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Many of the risks relating to product development, intellectual property, regulatory approval, and commercialization described in this “Risk Factors” section also apply to the activities of our licensees and any negative impact on these counterparties and their product development programs may adversely affect us.

If we seek to establish additional collaborations, but are unable to do so, we may have to alter our development and commercialization plans.

Our drug development programs and the potential commercialization of our product candidates will require substantial additional cash to fund expenses. We may seek to selectively form collaborations to expand our capabilities, potentially accelerate research and development activities, and provide for commercialization activities by third parties.

We face significant competition in seeking appropriate collaborators. Whether we reach a definitive agreement for a collaboration will depend, among other things, upon our assessment of the collaborator’s resources and expertise, the terms and conditions of the proposed collaboration, and the proposed collaborator’s evaluation of a number of factors. Those factors may include the design or results of clinical trials, the likelihood of approval by the FDA, EMA, or comparable foreign regulatory authorities, the potential market for the subject product candidate, the costs and complexities of manufacturing and delivering such product candidate to patients, the potential of competing drugs, the existence of uncertainty with respect to our ownership of intellectual property and industry and market conditions generally. The potential collaborator may also consider alternative product candidates or technologies for similar indications that may be available to collaborate on and whether such a collaboration could be more attractive than the one with us for our product candidate.

Collaborations are complex and time-consuming to negotiate and document. In addition, there have been a significant number of recent business combinations among large pharmaceutical companies that have resulted in a reduced number of potential future collaborators. Even if we successfully enter into a collaboration, the terms and conditions of that collaboration may restrict us from entering into future agreements on certain terms with potential collaborators.

If and when we seek to enter into collaborations, we may not negotiate collaborations on a timely basis, on acceptable terms, or at all. If we are unable to do so, we may have to curtail the development of a product candidate, reduce or delay its development program or one or more of our other development programs, delay its potential commercialization, or reduce the scope of any sales or marketing activities, or increase our expenditures and undertake development or commercialization activities at our own expense.

If we engage in acquisitions or strategic partnerships or collaborations, this may increase our capital requirements, dilute our stockholders, cause us to incur debt or assume contingent liabilities, and subject us to other risks.

We may evaluate various acquisition opportunities and strategic partnerships or collaborations, including licensing or acquiring complementary products, intellectual property rights, technologies or businesses. Any potential acquisition or strategic partnership may entail numerous risks, including:

 

   

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;

 

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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.

In addition, if we undertake acquisitions, we may issue dilutive securities, assume or incur debt obligations, incur large one-time expenses, and acquire intangible assets that could result in significant future amortization expense. Moreover, we may not locate suitable acquisition opportunities, and this inability could impair our ability to grow or obtain access to technology or products that may be important to the development of our business.

Other General Risks Applicable to Apexigen

The COVID-19 pandemic could adversely impact our business including our ongoing and planned clinical trials and preclinical research.

Over two years after the World Health Organization declared the novel coronavirus disease (COVID-19) a pandemic, the COVID-19 pandemic continues to impact worldwide economic activity and financial markets. Variants of COVID-19 have caused and may continue to cause waves of increased infections. As a result of measures imposed by the governments in affected regions, many commercial activities, businesses and schools have been affected by quarantines and other measures intended to contain the pandemic and subsequent variants of the COVID-19 virus. The extent to which the COVID-19 pandemic ultimately impacts our business will depend on future developments, which are highly uncertain and cannot be predicted, such as the duration of the outbreak, including current and subsequent variants of COVID-19, travel restrictions and social distancing in the United States and other countries, business closures or business disruptions, and the effectiveness of actions taken in the United States and other countries to contain and treat the disease and to address its impact, including on financial markets or otherwise. As the COVID-19 pandemic continues, we may experience disruptions that could severely impact our business, current and planned clinical trials and preclinical research, including:

 

   

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;

 

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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.

The COVID-19 pandemic continues to pose a threat on our ability to effectively conduct our business operations as planned and there can be no assurance that we will avoid a material impact on our business from the spread of COVID-19 or its consequences, including disruption to our business and downturns in business sentiment generally or in our industry or due to shutdowns that may be requested or mandated by federal, state and local governmental authorities.

Additionally, certain third parties with whom we engage or may engage, including collaborators, contract organizations, third-party manufacturers, suppliers, clinical trial sites, regulators and other third parties are similarly adjusting their operations and assessing their capacity in light of the COVID-19 pandemic. If these third parties experience shutdowns or continued business disruptions, our ability to conduct our business in the manner and on the timelines presently planned could be materially and negatively impacted. For example, as a result of the COVID-19 pandemic, there could be delays in the procurement of materials or manufacturing supply chains for one or more of our product candidates, which could delay or otherwise impact our preclinical studies and our planned clinical trials. Additionally, all of our preclinical studies are conducted by CROs, which could be discontinued or delayed as a result of the pandemic. It is also likely that the disproportionate impact of COVID-19 on hospitals and clinical sites will have an impact on recruitment and retention for our planned clinical trials. CROs have also made certain adjustments to the operation of such trials in an effort to ensure the monitoring and safety of patients and minimize risks to trial integrity during the pandemic in accordance with the guidance issued by the FDA and may need to make further adjustments in the future that could impact the timing or enrollment of our clinical trials. Many of these adjustments are new and untested, may not be effective, may increase costs and may have unforeseen effects on the enrollment, progress and completion of these trials and the findings from these trials. While we are currently continuing our clinical trials and preclinical studies, we may experience delays in the completion of our clinical trials, preclinical activities and subject enrollment, may need to suspend our clinical trials and may encounter other negative impacts to such trials due to the effects of the COVID-19 pandemic.

Further, as a result of the COVID-19 pandemic, the extent and length of which is uncertain, we may be required to develop and implement additional clinical trial policies and procedures designed to help protect

 

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subjects from the COVID-19 virus, which may include using telemedicine visits, remote monitoring of subjects and clinical sites and measures to ensure that data from clinical trials that may be disrupted as a result of the pandemic are collected pursuant to the study protocol and consistent with GCPs. Subjects who may miss scheduled appointments, any interruption in study drug supply, or other consequences that may result in incomplete data being generated during a clinical trial as a result of the pandemic must be adequately documented and justified. For example, in March 2020, the FDA issued a guidance, which the FDA subsequently updated, on conducting clinical trials during the pandemic, which describes a number of considerations for sponsors of clinical trials impacted by the pandemic, including the requirement to include in the clinical trial report contingency measures implemented to manage the trial, and any disruption of the trial as a result of the COVID-19 pandemic; a list of all subjects affected by the COVID-19-pandemic related study disruption by unique subject identifier and by investigational site and a description of how the individual’s participation was altered; and analyses and corresponding discussions that address the impact of implemented contingency measures (e.g., participant discontinuation from investigational product and/or study, alternative procedures used to collect critical safety and/or efficacy data) on the safety and efficacy results reported for the clinical trial. In June 2020, the FDA also issued a guidance on good manufacturing practice considerations for responding to COVID-19 infection in employees in drug product manufacturing, including recommendations for manufacturing controls to prevent contamination of drugs.

The COVID-19 pandemic continues to evolve. While the extent of the impact of the COVID-19 pandemic on our business and financial results is uncertain, a continued and prolonged public health crisis such as the COVID-19 pandemic could have a material negative impact on our business, financial condition and operating results.

To the extent the COVID-19 pandemic adversely affects our business and financial results, it may also have the effect of heightening many of the other risks described in this section and in this “Risk Factors” section.

Our internal computer systems, or those used by our third-party research institution collaborators, other contractors, or consultants, may fail or suffer other breakdowns, cyberattacks or information security breaches that could compromise the confidentiality, integrity and availability of such systems and data, result in material disruptions of our development programs and business operations, risk disclosure of confidential, financial or proprietary information, and affect our reputation.

Despite the implementation of security measures, our internal computer systems or those used by our third-party research institution collaborators, other contractors, or consultants, may be vulnerable to damage from computer viruses and unauthorized access. As the cyber-threat landscape evolves, attacks are growing in frequency, sophistication, and intensity, and are becoming increasingly difficult to detect. These risks are increased given the recent work from home arrangements because of the COVID-19 pandemic and the threats of Russian cyberattacks in response to the war in Ukraine. Such attacks could include the use of key loggers or other harmful and virulent malware, including ransomware or other denials of service, and can be deployed through malicious websites, the use of social engineering, and/or other means. If a breakdown, cyberattack, or other information security breach were to occur and cause interruptions in our operations, it could result in a misappropriation of confidential information, including our intellectual property or financial information, and a material disruption of our development programs and our business operations. For example, the loss of clinical trial data from completed, ongoing, or future clinical trials could result in delays in our regulatory approval efforts and significantly increase our costs to recover or reproduce the data. Likewise, we rely on our third-party research institution collaborators for research and development of our product candidates and other third parties for the manufacture of our product candidates and to conduct clinical trials, and similar events relating to their computer systems could also have a material adverse effect on our business. To the extent that any disruption or security breach were to result in a loss of, or damage to, our data or systems, or inappropriate disclosure of confidential, financial, or proprietary information, including data related to our personnel, we could incur liability or risk disclosure of confidential, financial, or proprietary information, and the further development and commercialization of our product candidates could be delayed. There can be no assurance that we and our

 

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business counterparties will be successful in efforts to detect, prevent, or fully recover systems or data from all breakdowns, service interruptions, attacks, or breaches of systems that could adversely affect our business and operations and/or result in the loss of critical or sensitive data, which could result in financial, legal, business, or reputational harm to us.

Our operations are subject to the effects of a rising rate of inflation.

The United States has recently experienced historically high levels of inflation. According to the U.S. Department of Labor, the annual inflation rate for the United States was approximately 8.5% for the 12 months ended March 31, 2022. If the inflation rate continues to increase, for example due to increases in the costs of labor and supplies, it will affect our expenses, such as employee compensation and research and development charges. Research and development expenses account for a significant portion of our operating expenses. Such increased charges may not be readily recoverable during the period of time that we are bringing the product candidates to market. Additionally, the United States is experiencing an acute workforce shortage, which in turn, has created a very competitive wage environment that may increase the Company’s operating costs. To the extent inflation results in rising interest rates and has other adverse effects on the market, it may adversely affect our consolidated financial condition and results of operations.

Business disruptions could seriously harm our future revenue and financial condition and increase our costs and expenses.

Our operations, and those of our third-party research institution and pharmaceutical company collaborators, manufacturers, and other contractors and consultants, could be subject to earthquakes, power shortages, telecommunications failures, water shortages, floods, hurricanes, typhoons, fires, extreme weather conditions, medical or public health crises, such as the COVID-19 pandemic, and other natural or man-made disasters or business interruptions, including terrorism and war. In addition, for some of our clinical trials, we rely on third-party research institution collaborators for conducting research and development of our product candidates, and they may be affected by government shutdowns or withdrawn funding. The occurrence of any of these business disruptions could seriously harm our operations and financial condition and increase our costs and expenses. We rely on third-party manufacturers to produce and process our product candidates. Our ability to obtain clinical supplies of our product candidates could be disrupted if the operations of these suppliers are affected by a man-made or natural disaster or other business interruption.

The majority of our operations, including our corporate headquarters, are located in the San Francisco Bay Area of California. Damage or extended periods of interruption to our corporate, development or research facilities due to fire, natural disaster, power loss, communications failure, unauthorized entry or other events could cause us to cease or delay development of some or all of our product candidates. Although we maintain customary insurance coverage, our insurance might not cover all losses under such circumstances and our business may be seriously harmed by such delays and interruption.

In February 2022, Russia commenced a war against Ukraine. The sanctions announced by the U.S. and other countries against Russia as a result include restrictions on selling or importing goods, services, or technology in or from affected regions and travel bans and asset freezes impacting connected individuals and political, military, business, and financial organizations in Russia. The United States and other countries could impose wider sanctions and take other actions should the conflict further escalate. It is not possible to predict the broader consequences of this conflict, which could include further sanctions, embargoes, regional instability, threats of cyberattacks, prolonged periods of higher inflation, geopolitical shifts, and adverse effects on macroeconomic conditions, currency exchange rates, and financial markets, all of which could have a material adverse effect on our business, financial condition, and results of operations.

We are subject to governmental export and import controls that could impair our ability to compete in international markets or subject us to liability if we violate these controls.

Our products may be subject to U.S. export control laws and regulations including the Export Administration Regulations (“EAR”) and trade and economic sanctions maintained by the Office of Foreign Assets Control

 

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(“OFAC”). As such, an export license may be required to export, reexport, or transfer our products to certain countries, end-users, and end-uses. If we were to fail to comply with such U.S. export controls laws and regulations, U.S. economic sanctions, or other similar laws, we could be subject to both civil and criminal penalties, including substantial fines, possible incarceration for employees and managers for willful violations, and the possible loss of our export or import privileges. Obtaining the necessary export license for a particular sale or offering may not be possible and may be time-consuming and may result in the delay or loss of sales opportunities. Furthermore, U.S. export control laws and economic sanctions prohibit the export of products to certain U.S. embargoed or sanctioned countries, governments, and persons, as well as for prohibited end-uses. Even though we take precautions to ensure that we and our partners comply with all relevant export control laws and regulations, any failure by us or our partners, including third party manufacturers, to comply with such laws and regulations could have negative consequences for us, including reputational harm, government investigations and penalties.

Changes in our products or changes in export and import regulations in such countries may create delays in the introduction of our products into international markets, prevent our end-customers with international operations from deploying our products globally or, in some cases, prevent or delay the export or import of our products to certain countries, governments or persons altogether. Any change in export or import laws or regulations, economic sanctions or related legislation, shift in the enforcement or scope of existing export, import or sanctions laws or regulations, or change in the countries, governments, persons, or technologies targeted by such export, import or sanctions laws or regulations, could result in decreased use of our products by, or in our decreased ability to export or sell our products to, existing or potential end-customers with international operations. Any decreased use of our products or limitation on our ability to export to or sell our products in international markets could adversely affect our business, financial condition, and results of operations.

Any legal proceedings or claims against us could be costly and time-consuming to defend and could harm our reputation regardless of the outcome.

We may in the future become subject to legal proceedings and claims that arise in the ordinary course of business, including intellectual property, collaboration, licensing agreement, product liability, employment, class action, whistleblower and other litigation claims, and governmental and other regulatory investigations and proceedings. Such matters can be time-consuming, divert management’s attention and resources, cause us to incur significant expenses or liability, or require us to change our business practices. In addition, the expense of litigation and the timing of this expense from period to period are difficult to estimate, subject to change, and could adversely affect our financial condition and results of operations. Because of the potential risks, expenses, and uncertainties of litigation, we may, from time to time, settle disputes, even where we have meritorious claims or defenses, by agreeing to settlement agreements. Any of the foregoing could adversely affect our business, financial condition, and results of operations.

Our ability to use our net operating loss carryforwards and certain other tax attributes may be limited.

As of December 31, 2021, Apexigen had federal net operating loss (NOL) carryforwards totaling $129.6 million. Of the $129.6 million, $101.4 million are carried forward indefinitely, but are subject to an 80% of taxable income limitation, and $28.3 million which will begin to expire in 2033, if not utilized. As of December 31, 2021, Apexigen had California NOL carryforwards of $64.5 million, which will begin to expire in 2035, if not utilized. Under Sections 382 and 383 of the United States Internal Revenue Code of 1986, as amended, if a corporation undergoes an “ownership change” (generally defined as a greater than 50-percentage-point cumulative change (by value) in the equity ownership of certain stockholders over a rolling three-year period), the corporation’s ability to use its pre-change NOL carryforwards and other pre-change tax attributes to offset its post-change taxable income or taxes may be limited. As a result of previous financing transactions and/or in connection with this Business Combination, Apexigen may have experienced, or we may experience, such an ownership change. We may also experience ownership changes in the future as a result of subsequent shifts in our stock ownership, some of which are outside our control. As a result, our ability to use our pre-change NOL carryforwards and other pre-change tax attributes to offset post-change taxable income or taxes may be subject to limitation.

 

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Other General Risks Related to BCAC

BCAC identified a material weakness in its internal control over financial reporting as of June 30, 2021, which was subsequently remedied. If BCAC is unable to maintain an effective system of internal control over financial reporting, BCAC may not be able to accurately report its financial results in a timely manner, which may adversely affect investor confidence in BCAC and materially and adversely affect BCAC’s business and operating results.

In connection with the reclassification of BCAC’s warrants, BCAC identified a material weakness in its internal controls over financial reporting. A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of BCAC’s annual or interim financial statements will not be prevented or detected and corrected on a timely basis.

Effective internal controls are necessary for BCAC to provide reliable financial reports and prevent fraud. BCAC remediated the material weakness in the second quarter of 2021.

If BCAC identifies any new material weaknesses in the future, any such newly identified material weakness could limit its ability to prevent or detect a misstatement of its accounts or disclosures that could result in a material misstatement of its annual or interim financial statements. In such case, BCAC may be unable to maintain compliance with securities law requirements regarding timely filing of periodic reports in addition to applicable stock exchange listing requirements, investors may lose confidence in its financial reporting and its stock price may decline as a result. The measures BCAC has taken to date, or any measures BCAC may take in the future, may not be sufficient to avoid potential future material weaknesses.

Certain of BCAC’s warrants are accounted for as a warrant liability and were recorded at fair value upon issuance with changes in fair value each period reported in earnings, which may have an adverse effect on the market price of BCAC Common Stock.

As of March 31, 2022, 123,500 Private Warrants were outstanding. These warrants will become exercisable 30 days after completion of the Business Combination provided that BCAC has an effective registration statement under the Securities Act covering the shares of BCAC Common Stock issuable upon exercise and a current prospectus relating to them is available and such shares are registered, qualified or exempt from registration under the securities, or blue sky, laws of the state of residence of the holder (or BCAC permits holders to exercise their warrants on a cashless basis under certain circumstances). Once these warrants become exercisable, BCAC may redeem outstanding warrants in certain circumstances; provided, however, that these warrants will not be redeemable by BCAC so long as they are held by the initial purchasers or any of their permitted transferees. Under GAAP, BCAC is required to evaluate contingent exercise provisions of these warrants and then their settlement provisions to determine whether they should be accounted for as a warrant liability or as equity. Any settlement amount not equal to the difference between the fair value of a fixed number of BCAC’s equity shares and a fixed monetary amount precludes these warrants from being considered indexed to its own stock, and therefore, from being accounted for as equity. As a result of the provision that these warrants, when held by someone other than the initial purchasers or their permitted transferees, will be redeemable by BCAC, the requirements for accounting for these warrants as equity are not satisfied. Therefore, BCAC is required to account for these warrants as a warrant liability and record (a) that liability at fair value, and (b) any subsequent changes in fair value as of the end of each period for which earnings are reported. The impact of changes in fair value on earnings may have an adverse effect on the market price of BCAC’s Common Stock.

The securities in which BCAC invests the funds held in the Trust Account could bear a negative rate of interest, which could reduce the value of the assets held in trust such that the per-share redemption amount received by public stockholders may be less than $10.00 per share.

BCAC’s initial public offering proceeds held in the Trust Account will be invested only in U.S. government treasury obligations with a maturity of 185 days or less or in money market funds meeting certain conditions

 

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under Rule 2a-7 under the Investment Company Act, which invest only in direct U.S. government treasury obligations. While short-term U.S. government treasury obligations currently yield a positive rate of interest, they have briefly yielded negative interest rates in recent years. Central banks in Europe and Japan pursued interest rates below zero in recent years, and the Open Market Committee of the Federal Reserve has not ruled out the possibility that it may in the future adopt similar policies in the United States. In the event that BCAC is unable to complete the Business Combination or make certain amendments to its amended and restated certificate of incorporation, BCAC’s Public Stockholders are entitled to receive their pro-rata share of the proceeds held in the Trust Account, plus any interest income, net of income taxes paid or payable (less, in the case BCAC is unable to complete the Business Combination, $100,000 of interest to pay dissolution expenses). Negative interest rates could reduce the value of the assets held in trust such that the per-share redemption amount received by public stockholders may be less than $10.00 per share.

Risks Related to the Business Combination

The Public Stockholders will experience immediate dilution as a consequence of the issuance of the Combined Company’s common stock as consideration in the Business Combination, 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 as a result of the issuance of Combined Company common stock (i) to Lincoln Park after the Closing pursuant to the Lincoln Park Purchase Agreement (both through the obligation to issue additional shares 90 days after the Closing and pursuant to any subsequent requests for funding made by Apexigen), (ii) under the 2022 Equity Incentive Plan, (iii) under the 2022 Employee Stock Purchase Plan, (iv) pursuant to the exercise of outstanding Apexigen Options and Apexigen Warrants or (v) pursuant to the future exercise of Public Warrants, Private Placement Warrants or PIPE Warrants. Having a minority share position may reduce the influence that our current stockholders have on the management of the Combined Company.

It is anticipated that, following the Business Combination, (i) Public Stockholders will own approximately 19.1% of the outstanding Combined Company common stock, (ii) the Apexigen stockholders will collectively own approximately 68.2% of the outstanding Combined Company common stock (without taking into account any public shares held by the Apexigen stockholders prior to the consummation of the Business Combination or purchased in the PIPE Investment), (iii) the PIPE Investors will collectively own approximately 5.7% of the outstanding Combined Company common stock, and (iv) the Sponsor will own approximately 6.2% of the outstanding Combined Company common stock (v) Lincoln Park will own approximately 0.6% of the outstanding Combined Company common stock, and (vi) the Representative will own approximately 0.2% of the Combined Company common stock. These percentages assume (1) that no additional Public Stockholders exercise their Redemption Rights, following those who did so in the April Partial Redemption, in connection with the Business Combination, (2) 1,502,000 shares are issued to the PIPE Investors pursuant to the PIPE Investment, (3) 150,000 shares are issued to Lincoln Park pursuant to the Lincoln Park Purchase Agreement, (4) no BCAC warrants are exercised and (5) neither BCAC nor Apexigen issue any additional equity securities prior to the Business Combination. If the actual facts are different from these assumptions, the percentage ownership retained by BCAC’s existing stockholders in the Combined Company will be different.

Ninety days following the Closing, the Combined Company is obligated to issue to Lincoln Park under the Lincoln Park Purchase Agreement $1,500,000 of Combined Company common stock, subject to a maximum of 500,000 shares. 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. You will experience dilution in connection with any issuances of Combined Company common stock under the Lincoln Park Purchase Agreement.

In addition, certain of Apexigen’s current and former employees, directors and consultants hold outstanding options that will be exchanged for Combined Company options, and after the Business Combination, certain of Apexigen’s current and future employees, directors and consultants are expected to be granted equity awards and purchase rights under the 2022 Equity Incentive Plan and the 2022 Employee Stock Purchase Plan, as applicable. You will experience additional dilution when those equity awards and purchase rights become vested and settled or exercisable, as applicable, for shares of the Combined Company common stock.

Your post-Closing Combined Company common stock ownership may also be substantially diluted by the exercise of Public Warrants by other Public Stockholders, as well as the exercise of Private Placement Warrants and PIPE Warrants.

 

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The issuance of additional Combined Company common stock will significantly dilute the equity interests of existing holders of Combined Company securities and may adversely affect prevailing market prices for Combined Company common stock or Warrants. Such dilution may also reduce the influence that you may have on the management of the Combined Company through the matters that are presented for voting to the Combined Company’s stockholders.

Warrants will become exercisable for Combined Company common stock, which would increase the number of shares eligible for future resale in the public market and result in dilution to our stockholders.

If the Business Combination is completed, outstanding Warrants to purchase an aggregate of 2,998,500 shares of Combined Company common stock will become exercisable in accordance with the terms of the warrant agreement governing those securities, as well as PIPE Warrants to purchase an aggregate of 751,000 shares of Combined Company common stock. These Warrants will become exercisable 30 days after the completion of the Business Combination. The exercise price of these Warrants will be $11.50 per share. To the extent such Warrants are exercised, additional shares of Combined Company common stock will be issued, which will result in dilution to the holders of Combined Company common stock and increase the number of shares eligible for resale in the public market. The dilution, as a percentage of outstanding shares, caused by the exercise of the Warrants will increase if a large number of our Public Stockholders elect to redeem their shares in connection with the Business Combination. Further, the redemption of Public Shares without any accompanying redemption of Public Warrants will increase the dilutive effect of the exercise of Public Warrants. Sales of substantial numbers of such shares in the public market or the fact that such Warrants may be exercised could adversely affect the market price of Combined Company common stock. However, there is no guarantee that the Warrants will ever be in the money prior to their expiration, and the historical trading prices for shares of BCAC Common Stock have varied between a low of approximately $9.81 per share on August 5, 2021 to a high of approximately $10.65 per share on February 22, 2022, and have not approached the $11.50 per share exercise price for the Warrants. As such, the Warrants may expire worthless.

The market price of shares of the 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.

Upon completion of the Business Combination, holders of shares of Apexigen securities will become holders of shares of Combined Company common stock. Prior to the Business Combination, BCAC has had limited operations. Upon completion of the Business Combination, the Combined Company’s results of operations will depend upon the performance of Apexigen’s businesses, which are affected by factors that are different from those currently affecting the results of operations of BCAC.

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.

BCAC is not required to, and has not, obtained an opinion from an independent investment banking firm that the merger consideration it is paying for Apexigen is fair to BCAC’s stockholders from a financial point of view. The fair market value of Apexigen has been determined by the BCAC Board based upon standards generally accepted by the financial community, such as potential sales and the price for which comparable businesses or assets have been valued. The BCAC Board believes because of the financial skills and background of its directors, it was qualified to conclude that the Business Combination was fair from a financial perspective to its stockholders and that Apexigen’s fair market value was at least 80% of the assets held in the Trust Account (excluding the taxes payable on interest earned on the Trust Account) at the time of the agreement to enter into the Business Combination. BCAC’s stockholders will be relying on the judgment of the BCAC Board with respect to such matters.

 

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If the Business Combination’s benefits do not meet the expectations of financial analysts, the market price of our common stock may decline.

The market price of our common stock may decline as a result of the Business Combination if we do not achieve the perceived benefits of the Business Combination as rapidly, or to the extent anticipated by, financial analysts or the effect of the Business Combination on our financial results is not consistent with the expectations of financial analysts. Accordingly, holders of our common stock following the consummation of the Business Combination may experience a loss as a result of a decline in the market price of such common stock. In addition, a decline in the market price of our common stock following the consummation of the Business Combination could adversely affect our ability to issue additional securities and to obtain additional financing in the future.

There can be no assurance that the Combined Company’s 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.

In connection with the Closing, we intend to list the Combined Company’s common stock and warrants on Nasdaq under the symbols “APGN” and “APGNW,” respectively. The Combined Company’s continued eligibility for listing may depend on the number of our shares that are converted. If, after the Business Combination, Nasdaq delists the Combined Company’s shares from trading on its exchange for failure to meet the listing standards, the Combined Company and its stockholders could face significant material adverse consequences including:

 

   

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.

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 Business Combination Agreement is subject to a number of conditions which must be fulfilled in order to complete the Business Combination. Those conditions include: approval of the Business Combination Agreement by Apexigen stockholders, approval of the proposals required to effect the Business Combination by BCAC stockholders, as well as receipt of certain requisite regulatory approvals, absence of orders prohibiting completion of the Business Combination, effectiveness of the registration statement of which this proxy statement/prospectus is a part, approval of the shares of Combined Company common stock to be issued to BCAC stockholders for listing on Nasdaq, the resignation of specified BCAC executive officers and directors, the accuracy of the representations and warranties by both parties (subject to the materiality standards set forth in the Business Combination Agreement) and the performance by both parties of their covenants and agreements. These conditions to the Closing may not be fulfilled in a timely manner or at all, and, accordingly, the Business Combination may not be completed. In addition, the parties can mutually decide to terminate the Business Combination Agreement at any time, before or after stockholder approval, or BCAC or Apexigen may elect to terminate the Business Combination Agreement in certain other circumstances. See “The Business Combination Agreement-Termination.”

 

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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.

In the period leading up to the Closing, other events may occur that, pursuant to the Business Combination Agreement, would require us to agree to amend the Business Combination Agreement, to consent to certain actions or to waive certain closing conditions or other rights that we are entitled to under the Business Combination Agreement. Such events could arise because of changes in the course of Apexigen’s business, a request by Apexigen to undertake actions that would otherwise be prohibited by the terms of the Business Combination Agreement or the occurrence of other events that would have a material adverse effect on Apexigen’s business and would entitle us to terminate the Business Combination Agreement. In any of such circumstances, it would be in our discretion, acting through the BCAC Board, to grant our consent or waive our rights. The existence of the financial and personal interests of the directors and officers described elsewhere in this proxy statement may result in a conflict of interest on the part of one or more of the directors or officers between what he or she may believe is best for BCAC and our stockholders and what he or she may believe is best for himself or herself or his or her affiliates in determining whether or not to take the requested action.

For example, it is a condition to BCAC’s obligation to close the Business Combination that Apexigen’s representations and warranties be true and correct as of the Closing in all respects subject to the applicable materiality standards as set forth in the Business Combination Agreement. However, if the BCAC Board determines that any such breach is not material to the business of Apexigen, then the BCAC Board may elect to waive that condition and close the Business Combination. The parties will not waive the condition that BCAC’s stockholders approve the Business Combination.

As of the date of this proxy statement/prospectus, we do not believe there will be any material changes or waivers that our directors and officers would be likely to make after stockholder approval of the Business Combination has been obtained. While certain changes could be made without further stockholder approval, if there is a change to the terms of the Business Combination that would have a material impact on the stockholders, we will be required to circulate a new or amended proxy statement or supplement thereto and resolicit the vote of our stockholders with respect to the Business Combination Proposal.

Termination of the Business Combination Agreement could negatively impact BCAC.

If the Business Combination is not completed for any reason, including as a result of Apexigen stockholders declining to adopt the Business Combination Agreement or BCAC stockholders declining to approve the proposals required to affect the Business Combination, the ongoing business of BCAC may be adversely impacted and, without realizing any of the anticipated benefits of completing the Business Combination, BCAC would be subject to a number of risks, including the following:

 

   

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.”

 

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If the Business Combination Agreement is terminated and the BCAC Board seeks another merger or business combination, BCAC stockholders cannot be certain that BCAC will be able to find another acquisition target that would constitute a business combination that such other merger or business combination will be completed within the Completion Window. See “The Business Combination Agreement-Termination.

Apexigen will be subject to business uncertainties and contractual restrictions while the Business Combination is pending.

Uncertainty about the effect of the Business Combination on employees and customers may have an adverse effect on Apexigen and consequently on BCAC. These uncertainties may impair Apexigen’s ability to attract, retain and motivate key personnel until the Business Combination is completed and could cause customers and others that deal with Apexigen to seek to change existing business relationships with Apexigen. Retention of certain employees may be challenging during the pendency of the Business Combination as certain employees may experience uncertainty about their future roles. If key employees depart because of issues relating to the uncertainty and difficulty of integration or a desire not to remain with the business, our business following the Business Combination could be negatively impacted. In addition, the Business Combination Agreement restricts Apexigen from making certain expenditures and taking other specified actions without the consent of BCAC until the Business Combination occurs. These restrictions may prevent Apexigen from pursuing attractive business opportunities that may arise prior to the completion of the Business Combination. See “The Business Combination Agreement-Covenants and Agreements.”

BCAC directors and officers may have interests in the Business Combination different from the interests of BCAC stockholders.

Executive officers of BCAC negotiated the terms of the Business Combination Agreement with their counterparts at Apexigen, and the BCAC Board determined that entering into the Business Combination Agreement was in the best interests of BCAC and its stockholders, declared the Business Combination Agreement advisable and recommended that BCAC stockholders approve the proposals required to affect the Business Combination. In considering these facts and the other information contained in this proxy statement/prospectus, you should be aware that BCAC’s executive officers and directors may have financial interests in the Business Combination that may be different from, or in addition to, the interests of BCAC stockholders. The BCAC Board was aware of and considered these interests, among other matters, in reaching the determination to approve the terms of the Business Combination and in recommending to BCAC’s stockholders that they vote to approve the Business Combination. These interests include, among other things:

 

   

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 $14,020,800 based upon the closing price of $10.16 per share of BCAC Common Stock on the Nasdaq on June 30, 2022. 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

 

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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 $2,519,400 based upon the closing price of $10.20 per unit on the Nasdaq on June 30, 2022. 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 expenses incurred by them in connection with certain activities on BCAC’s behalf, such as identifying and investigating possible business targets and business combinations. However, if BCAC fails to consummate a business combination within the Completion Window, they will not have any claim against the Trust Account for reimbursement. Accordingly, BCAC may not be able to reimburse these expenses if the Business Combination or another business combination is not consummated within the Completion Window. As of the date of this prospectus, there were no out-of-pocket expenses incurred by BCAC’s directors, officers or their affiliates that have not otherwise been reimbursed from BCAC’s working capital funds following the BCAC IPO. Additionally, the Sponsor is entitled to $10,000 per month for office space, utilities, administrative and support services provided to BCAC’s management team, which commenced on January 28, 2021 and will continue through the earlier of consummation of the Business Combination and BCAC’s liquidation.

 

   

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.

 

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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.

There will be no finder’s fees, reimbursements or cash payments made by BCAC to the Sponsor or BCAC’s officers or directors, or any of BCAC’s or its officers’ or directors’ affiliates, for services rendered to BCAC prior to or in connection with the completion of the Business Combination, other than payment of the amount described above for office space, utilities, administrative and support services, and repayments of the Additional Contributions and any Working Capital Notes by our Sponsor or affiliates of our Sponsor to fund working capital deficiencies or finance transaction costs in connection with an initial business combination, which Working Capital Notes will be repayable by BCAC upon the Closing. The Sponsor, in its discretion, may in lieu of having the Working Capital Notes repaid upon the Closing, instead convert the Working Capital Notes into units of BCAC, at a price of $10.00 per unit, upon the Closing, provided that the maximum amount that may be converted is no more than $1,500,000. The Sponsor and BCAC’s officers and directors or any of their respective affiliates will also be reimbursed for any out-of-pocket expenses incurred in connection with BCAC’s formation, the BCAC IPO and activities on BCAC’s behalf such as identifying potential target businesses and performing due diligence on suitable business combinations. There is no cap or ceiling on the reimbursement of out-of-pocket expenses incurred by such persons in connection with activities on our behalf. As of the date of this prospectus, the Sponsor had not incurred any out-of-pocket expenses in connection with the Business Combination that, as of such date, had not been reimbursed by BCAC from BCAC’s working capital funds following the BCAC IPO.

See “Meeting of BCAC Stockholders-Recommendation of BCAC Board of Directors.”

Apexigen directors and officers may have interests in the Business Combination different from the interests of Apexigen stockholders.

Executive officers of Apexigen negotiated the terms of the Business Combination Agreement with their counterparts at BCAC, and the Apexigen Board determined that entering into the Business Combination Agreement was in the best interests of Apexigen and its stockholders. In considering these facts and the other

 

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information contained in this proxy statement/ prospectus, you should be aware that Apexigen’s executive officers and directors may have financial interests in the Business Combination that may be different from, or in addition to, the interests of Apexigen stockholders. The Apexigen Board was aware of and considered these interests, among other matters, in reaching the determination to approve the terms of the Business Combination. See “The Business Combination-Interests of Apexigen’s Directors and Executive Officers in the Business Combination.

There are risks to BCAC stockholders who are not affiliates of the Sponsor of becoming stockholders of the Combined Company through the Business Combination rather than acquiring securities of Apexigen directly in an underwritten public offering, including no independent due diligence review by an underwriter and conflicts of interest of the Sponsor.

Because there is no independent third-party underwriter involved in the Business Combination or the issuance of common stock and warrants in connection therewith, investors will not receive the benefit of any outside independent review of BCAC’s and Apexigen’s respective finances and operations. Underwritten public offerings of securities conducted by a licensed broker-dealer are subjected to a due diligence review by the underwriter or dealer-manager to satisfy statutory duties under the Securities Act, the rules of Financial Industry Regulatory Authority, Inc. (“FINRA”) and the national securities exchange where such securities are listed. Additionally, underwriters or dealer-managers conducting such public offerings are subject to liability for any material misstatements or omissions in a registration statement filed in connection with the public offering. As no such review will be conducted in connection with the Business Combination, our stockholders must rely on the information in this proxy statement/prospectus and will not have the benefit of an independent review and investigation of the type normally performed by an independent underwriter in a public securities offering.

In addition, the Sponsor and certain of BCAC’s executive officers and directors have interests in the Business Combination that may be different from, or in addition to, the interests of our stockholders generally. Such interests may have influenced the BCAC Board in making its recommendation that you vote in favor of the Business Combination Proposal and the other proposals described in this proxy statement/prospectus. See “The Business Combination-Interests of BCAC’s Directors and Officers in the Business Combination.”

The Sponsor may have interests in the Business Combination different from the interests of BCAC stockholders.

When considering the BCAC Board’s recommendation that our stockholders vote in favor of the approval of the Business Combination Proposal and the other Proposals described in this proxy statement, our stockholders should be aware that the Sponsor has interests in the Business Combination that may be different from, in addition to, or conflict with the interests of our stockholders in general. See “The Business Combination-Interests of BCAC’s Directors and Executive Officers in the Business Combination.”

The Sponsor and BCAC’s stockholders, directors, officers, advisors, and their affiliates may elect to purchase shares or Warrants from Public Stockholders, which may influence a vote on the Business Combination and reduce the public “float” of our common stock.

The Sponsor and BCAC’s stockholders, directors, officers, advisors or any of their affiliates may purchase shares and/or warrants from investors, or they may enter into transactions with such investors and others to provide them with incentives to acquire public shares, vote their public shares in favor of the Business Combination Proposal or not redeem their public shares. The purpose of any such transaction could be to vote such shares in favor of the Business Combination and thereby increase the likelihood of obtaining stockholder approval of the Business Combination. Any such stock purchases and other transactions may thereby increase the likelihood of obtaining stockholder approval of the Business Combination. This may result in the completion of the Business Combination in a way that may not otherwise have been possible. While the exact nature of any such incentives has not been determined as of the date of this proxy statement/prospectus, they might include, without limitation, arrangements to protect such investors or holders against potential loss in value of their

 

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shares, including the granting of put options and the transfer to such investors or rights owned by the Sponsor or BCAC’s directors or officers for nominal value. However, other than as expressly stated herein, they have no current commitments, plans or intentions to engage in such transactions and have not formulated any terms or conditions for any such transactions. None of the funds in the Trust Account will be used to purchase shares or Warrants in such transactions.

Entering into any such arrangements may have a depressive effect on public shares. For example, as a result of these arrangements, an investor or holder may have the ability to effectively purchase shares at a price lower than market and may therefore be more likely to sell the shares it owns, either prior to or immediately after the Stockholders’ Meeting.

If such transactions are affected, the consequence could be to cause the Business Combination to be approved in circumstances where such approval could not otherwise be obtained. Purchases of public shares by the persons described above would allow them to exert more influence over the approval of the proposals to be presented at the Stockholders’ Meeting and would likely increase the chances that such proposals would be approved. In addition, if such purchases are made, the public “float” of our common stock or warrants may be reduced and the number of beneficial holders of our securities may be reduced, possibly making it difficult to maintain or obtain the quotation, listing or trading of our securities on a national securities exchange.

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.

The unaudited pro forma condensed combined financial information included in this proxy statement/prospectus is presented for illustrative purposes only and is not necessarily indicative of what our actual financial position or results of operations would have been had the Business Combination been completed on the date(s) indicated. The preparation of the pro forma financial information is based upon available information and certain assumptions and estimates that BCAC and Apexigen currently believe are reasonable. However, the final reverse recapitalization accounting adjustments may differ materially from the pro forma adjustments reflected in this proxy statement/ prospectus. Accordingly, the Combined Company’s business, assets, cash flows, results of operations and financial condition may differ significantly from those indicated by the unaudited pro forma condensed combined financial statements included in this proxy statement/prospectus. See “Unaudited Pro Forma Condensed Combined Financial Information.

BCAC and Apexigen will incur transaction costs in connection with the Business Combination.

Each of BCAC and Apexigen has incurred and expects that it will incur significant, non-recurring costs in connection with consummating the Business Combination. BCAC and Apexigen may also incur additional costs to retain key employees. BCAC and Apexigen will also incur significant legal, financial advisor, accounting, banking, and consulting fees, fees relating to regulatory filings and notices, SEC filing fees, printing and mailing fees and other costs associated with the Business Combination. BCAC and Apexigen estimate that they will incur $9.4 million in aggregate transaction costs. Some of the transaction costs are payable regardless of whether the Business Combination is completed. See “The Business Combination-Terms of the Business Combination.”

Apexigen’s stockholders will have their rights as stockholders governed by the Combined Company’s organizational documents.

As a result of the completion of the Business Combination, holders of shares of Apexigen Common Stock and preferred stock may become holders of shares of Combined Company common stock, which will be governed by the Combined Company’s organizational documents. As a result, there will be differences between the rights currently enjoyed by Apexigen stockholders and the rights that Apexigen stockholders who become stockholders of the Combined Company will have as stockholders of the Combined Company. See “Comparison of Stockholders’ Rights.

 

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The Sponsor has agreed to vote in favor of each of the proposals presented at the Stockholders’ Meeting, regardless of how Public Stockholders vote.

Pursuant to the Sponsor Support Agreement, the Sponsor has agreed to vote its Founder Shares and any Public Shares it holds in favor of each of the Proposals presented at the Stockholders’ Meeting, regardless of how Public Stockholders vote. Accordingly, the agreement by the Sponsor to vote in favor of the each of the Proposals presented at the Stockholders’ Meeting will increase the likelihood that BCAC will receive the requisite stockholder approval for the Business Combination and the transactions contemplated thereby. See “Other Agreements-Sponsor Support Agreement.”

BCAC’s and Apexigen’s ability to consummate the Business Combination may be materially adversely affected by the coronavirus (COVID-19) pandemic.

The COVID-19 pandemic has resulted, and other infectious diseases could result, in a widespread health crisis that has and could continue to adversely affect the economies and financial markets worldwide, which may delay or prevent the consummation of the Business Combination. The extent of such impact will depend on future developments, which are highly uncertain and cannot be predicted. The parties will be required to consummate the Business Combination even if Apexigen, its business, financial condition, and results of operations are materially affected by COVID-19. The disruptions posed by COVID-19 have continued, and other matters of global concern may continue, for an extensive period of time, and if Apexigen is unable to recover from business disruptions due to COVID-19 or other matters of global concern on a timely basis, Apexigen’s ability to consummate the Business Combination may be materially adversely affected.

Certain of our warrants are accounted for as a warrant liability and are recorded at fair value upon issuance with changes in fair value each period reported in earnings, which may have an adverse effect on the market price of our common stock.

As of March 31, 2022, the BCAC had 123,500 Private Warrants outstanding. These warrants will become exercisable 30 days after completion of the initial business combination provided that the BCAC has an effective registration statement under the Securities Act covering the shares of our common stock issuable upon exercise and a current prospectus relating to them is available and such shares are registered, qualified or exempt from registration under the securities, or blue sky, laws of the state of residence of the holder (or BCAC permits holders to exercise their warrants on a cashless basis under certain circumstances). Once the Private Warrants become exercisable, BCAC may redeem outstanding warrants in certain circumstances. Under GAAP, BCAC is required to evaluate contingent exercise provisions of these warrants and then their settlement provisions to determine whether they should be accounted for as a warrant liability or as equity. Any settlement amount not equal to the difference between the fair value of a fixed number of our equity shares and a fixed monetary amount precludes these warrants from being considered indexed to its own stock, and therefore, from being accounted for as equity. As a result of the provision that the Private Warrants, when held by someone other than the initial purchasers or their permitted transferees, will be redeemable by BCAC, the requirements for accounting for these warrants as equity are not satisfied. Therefore, BCAC is required to account for these Private Warrants as a warrant liability and record (a) that liability at fair value, and (b) any subsequent changes in fair value as of the end of each period for which earnings are reported. The impact of changes in fair value on earnings may have an adverse effect on the market price of our common stock.

The securities in which we invest the funds held in the Trust Account could bear a negative rate of interest, which could reduce the value of the assets held in trust such that the per-share redemption amount received by public stockholders may be less than $10.00 per share.

The proceeds held in the Trust Account will be invested only in U.S. government treasury obligations with a maturity of 185 days or less or in money market funds meeting certain conditions under Rule 2a-7 under the Investment Company Act, which invest only in direct U.S. government treasury obligations. While short-term U.S. government treasury obligations currently yield a positive rate of interest, they have briefly yielded negative

 

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interest rates in recent years. Central banks in Europe and Japan pursued interest rates below zero in recent years, and the Open Market Committee of the Federal Reserve has not ruled out the possibility that it may in the future adopt similar policies in the United States. In the event that we are unable to complete our initial business combination or make certain amendments to our amended and restated memorandum and articles of association, our public stockholders are entitled to receive their pro-rata share of the proceeds held in the Trust Account, plus any interest income, net of income taxes paid or payable (less, in the case we are unable to complete our initial business combination, $100,000 of interest to pay dissolution expenses). Negative interest rates could reduce the value of the assets held in trust such that the per-share redemption amount received by public stockholders may be less than $10.00 per share.

We have identified a material weakness in our internal control over financial reporting as of June 30, 2021. If we are unable to maintain an effective system of internal control over financial reporting, we may not be able to accurately report our financial results in a timely manner, which may adversely affect investor confidence in us and materially and adversely affect our business and operating results.

In connection with the reclassification of our warrants, we identified a material weakness in our internal controls over financial reporting.

A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected and corrected on a timely basis.

Effective internal controls are necessary for us to provide reliable financial reports and prevent fraud.

If we identify any new material weaknesses in the future, any such newly identified material weakness could limit our ability to prevent or detect a misstatement of our accounts or disclosures that could result in a material misstatement of our annual or interim financial statements. In such case, we may be unable to maintain compliance with securities law requirements regarding timely filing of periodic reports in addition to applicable stock exchange listing requirements, investors may lose confidence in our financial reporting and our stock price may decline as a result. We cannot assure you that the measures we have taken to date, or any measures we may take in the future, will be sufficient to avoid potential future material weaknesses. BCAC’s warrants are accounted for as derivative liabilities and will be recorded at fair value with changes in fair value each period reported in earnings, which may have an adverse effect on the market price of shares of BCAC Common Stock or may make it more difficult for us to consummate an initial business combination.

In connection with the BCAC IPO, BCAC issued an aggregate of 2,998,500 BCAC warrants, including warrants issued to the Sponsor as a part of the units in the private placement. We account for such BCAC warrants as derivative liabilities and will record at fair value any changes in fair value each period reported in earnings as determined by us based upon a valuation report obtained from an independent third-party valuation firm. The impact of changes in fair value on earnings may have an adverse effect on the market price of shares of BCAC Common Stock. In addition, potential targets may seek a SPAC that does not have warrants or that does not have warrants that are accounted for as derivative liabilities, which may make it more difficult for us to consummate an initial business combination with a target business.

Risks Related to Ownership of Combined Company common stock Following the Business Combination

The price of shares of Combined Company common stock may be volatile or may decline regardless of our operating performance. You may lose some or all of your investment.

The trading price of shares of Combined Company common stock following the Business Combination is likely to be volatile. The stock market recently has experienced extreme volatility. This volatility often has been

 

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unrelated or disproportionate to the operating performance of particular companies. You may not be able to resell your shares at an attractive price due to a number of factors such as those listed in “Risks Related to Apexigen’s Business and Industry” and the following:

 

   

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;