PURCHASE OPTION AGREEMENT
This PURCHASE OPTION AGREEMENT (this "AGREEMENT") is made as
of August 3, 2007, by and among ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("JP"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
("DLS"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (together with his heirs, successors, or assigns, as
applicable "MPK", ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("EBB") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ("WAS")
together with JP, DLS, MPK, and EBB, collectively referred to as the "SELLERS"
and individually as a "SELLER") and Riverview Group LLC, a Delaware limited
liability company (together with any designated affiliate as provided in Section
10 below, the "BUYER").
WHEREAS, Seller is the beneficial and record owners of the
number of shares (the "COMMON SHARES") of the common stock, $0.0001 par value,
of Healthcare Acquisition Corp, a Delaware corporation ("HAQ"), set forth
opposite his name on SCHEDULE A hereto and which shares were acquired prior to
the initial public offering of HAQ (the "IPO");
WHEREAS, in connection with the IPO each Seller was required
to escrow the Common Shares pursuant to that certain Stock Escrow Agreement (the
"ESCROW AGREEMENT"), dated as of July 2005, among the Seller, certain other
stockholders of HAQ and Continental Stock Transfer & Trust Company;
WHEREAS, HAQ is a party to an Agreement and Plan of Merger,
dated as of January 19, 2007 (the "MERGER AGREEMENT"), with PharmAthene, Inc., a
Delaware corporation ("PHARMATHENE"), HAQ's wholly-owned subsidiary, PAI
Acquisition Corp., also a Delaware corporation ("MERGER SUB"), pursuant to which
it is contemplated that Merger Sub will merge (the "MERGER") with and into
PharmAthene as a result of which, among other things, PharmAthene shall become a
wholly-owned subsidiary of HAQ;
WHEREAS, consummation of the Merger is subject to, among other
things, (1) the approval of the proposal approving the Merger ("MERGER
PROPOSAL") set forth in HAQ's definitive proxy statement dated July 13, 2007
(the "HAQ PROXY") by the affirmative vote of a majority of the shares of HAQ's
common stock issued in its initial public offering (the "IPO") voting on such
proposal at the Special Meeting of Stockholders of HAQ scheduled to take place
on August 2, 2007 (the "SPECIAL MEETING"); and (2) less than 20% of the shares
of HAQ's common stock issued in HAQ's IPO voting against the Merger Proposal and
electing a cash conversion of their shares (the "CONVERSION RIGHT"); and
WHEREAS, the Buyer has entered into one or more agreements
with certain current stockholders of HAQ (who owned such shares on the record
date for the Special Meeting and intended to vote such shares against the Merger
Proposal) to purchase not less than an aggregate of 1.2 million shares of such
common stock (the "OPPOSING HAQ SHARES") and to obtain such stockholders' rights
to vote on the proposals, including the Merger Proposal, being voted upon at the
Special Meeting or to cause such stockholders to vote in favor of the merger;
and
WHEREAS, the parties desire that the Merger be approved and
consummated and anticipate that an aggregate of up to 2.8 million Opposing HAQ
Shares, including those
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being purchased by Buyer, may be purchased by other investors such as Buyer in
private transactions; and
WHEREAS, each of the Sellers, acting individually and not as a
group, wish to enter into this Agreement to provide Buyer with the option to
purchase a portion of the Common Shares owned by each Seller as more
particularly described herein.
NOW, THEREFORE, in consideration of $100.00 duly paid by or on
behalf of Buyer to the Seller and in consideration of other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. OPTIONS TO PURCHASE.
(a) COMMON SHARE OPTION. During the period commencing on the
date that the Common Shares are disbursed to the Sellers pursuant to Section 3
of the Escrow Agreement and ending at 5:00pm (New York time) on the one year
anniversary of such date, the Buyer shall have the option (the "COMMON SHARE
OPTION") to purchase from the Sellers an aggregate of 542,894 shares of the
Sellers' Common Shares (the "COMMON SHARE OPTION NUMBER"), with an exercise
price of $0.0001 per share, in such amounts of Common Shares set forth opposite
each Sellers name on Schedule A hereto. Notwithstanding anything herein to the
contrary, if Buyer purchases such number of shares that is less than the
Opposing HAQ Shares, the Common Share Option Number shall be adjusted, pro rata
among the Sellers; provided, however that, regardless of the number of Opposing
HAQ Shares purchased by the New Investors, the Sellers shall not grant any
options to purchase Common Shares to the New Investors in excess of 1,266,752
shares.
(b) CONDITIONS. This Agreement and the Common Share Option
shall automatically terminate and become null and void if (i) HAQ does not
receive the requisite stockholder approval to approve the Merger at the special
meeting of HAQ stockholders scheduled for August 2, 2007 (the "SPECIAL MEETING")
or (ii) Buyer does not fulfill its obligations set forth in Section 6 below.
(c) For purposes of this Agreement,
(i) "MERGER" shall mean the merger of PharmAthene with
and into Merger Sub pursuant to the Merger Agreement.
(ii) "MERGER AGREEMENT" shall mean that certain Merger
Agreement dated January 19, 2007, among HAQ, Merger Sub and PharmAthene.
2. ELECTION TO PURCHASE.
To make an election to exercise the Option pursuant to this
Agreement, Buyer shall give written notice of such election (a "PURCHASE
NOTICE") to the Sellers, which Purchase Notice shall specify (i) the number of
options being exercised (the "APPLICABLE SHARE NUMBER") and (ii) the date of the
closing of such purchase (a "CLOSING DATE"), which notice shall be delivered on
or before 5p.m. (New York time) on the date on which such Option expires
pursuant to the terms of Section 1(a) or 1(b), as applicable, and which Closing
Date shall be no
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later than five (5) business days after the date of the delivery of such notice.
On the Closing Date, at the offices of ▇▇▇▇▇▇▇▇ & English, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇-▇▇▇▇, the Sellers shall tender to the Buyer the
applicable Common Shares with the necessary instruments of transfer in form
reasonable acceptable to Buyer and the Buyer shall deliver payment of the
applicable purchase price payable in cash, by certified check, official bank
check or by wire transfer of immediately available funds. On the Closing Date,
Sellers shall provide assurance that such Common Shares are transferred free and
clear of all liens, restrictions, encumbrances and rights of third parties.
3. LIMITATIONS ON EXERCISES; BENEFICIAL OWNERSHIP. Sellers
shall not effect the exercise of this Option, and the Buyer shall not have the
right to exercise this Option, to the extent that after giving effect to such
exercise, such person or entity ("PERSON") (together wit such Person's
affiliates) would beneficially own in excess of 9.99% (the "MAXIMUM PERCENTAGE")
of the shares of Common Stock of Healthcare (the "COMMON STOCK") outstanding
immediately after giving effect to such exercise. For purposes of the foregoing
sentence, the aggregate number of shares of Common Stock beneficially owned by
such Person and its affiliates shall include the number of shares issuable upon
exercise of this Option with respect to the determination of such amount of
shares is being made, but shall exclude shares of Common Stock which would be
issuable upon (A) exercise of the remaining, unexercised portion of this Option
beneficially owned by such Person and its affiliates and (B) exercise or
conversion of the unexercised or unconverted portion of any other securities of
HAQ beneficially owned by such Person and its affiliates (including, without
limitation, any convertible notes or convertible preferred stock or warrants)
subject to a limitation on conversion or exercise analogous to the limitation
contained herein. Except as set forth in the preceding sentence, for purposes of
this paragraph, beneficial ownership shall be calculated in accordance with
Section 13(d) of the Securities Exchange Act of 1934, as amended. For purposes
of this Option, in determining the number of outstanding shares of Common Stock,
the Buyer may rely on the number of outstanding shares of Common Stock as
reflected in (1) the Company's most recent Form 10-K, 10-KSB, Form 10-Q, 10-QSB,
Current Report on Form 8-K or other public filing with the Securities and
Exchange Commission, as the case may be, (2) a more recent public announcement
by HAQ or (3) any other notice by HAQ or HAQ's transfer agent setting forth the
number of shares of Common Stock outstanding. In any case, the number of shares
of Common Stock shall be determined after giving effect to the conversion or
exercise of securities of HAQ, by the Buyer and its affiliates since the date as
of which such number of outstanding shares of Common Stock was reported. By
written notice to the Sellers, the Buyer may increase or decrease the Maximum
Percentage to any other percentage not in excess of 9.99% specified in such
notice; provided that any such increase will not be effective until the
sixty-first (61st) day after such notice is delivered to the Sellers.
4. REPRESENTATION AND COVENANTS OF SELLERS.
Such Seller, severally and not jointly, hereby represents,
warrants and covenants to Buyer, as follows:
(a) DUE ORGANIZATION. Seller, if not an individual, has been
duly organized, is validly existing and is in good standing, as applicable,
under the laws of the jurisdiction of its organization.
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(b) POWER; DUE AUTHORIZATION; BINDING AGREEMENT. Seller has
full legal capacity, power and authority to execute and deliver this Agreement,
to perform its obligations hereunder, and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby by Seller, have been duly
and validly authorized by all necessary action on the part of Seller, and no
other proceedings on the part of Seller are necessary to authorize this
Agreement, or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by Seller and constitutes a
valid and binding agreement of Seller, enforceable against Seller in accordance
with its terms, except that enforceability may be subject to the effect of (a)
any applicable bankruptcy, reorganization, receivership, conservatorship,
insolvency, moratorium or other similar laws affecting or relating to the
enforcement of creditors' rights generally and to general principles of equity
and, (b) any laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies, regardless of whether considered
in a proceeding in law or equity.
(c) OWNERSHIP OF SECURITIES. On the date hereof, the
Securities set forth opposite Seller's name on SCHEDULE A hereto are owned of
record and beneficially by Seller. As of the date hereof, Seller has sole voting
power and sole dispositive power with respect to all of such Securities owned by
Seller. All of such Securities held by Seller are free and clear of all liens,
pledges, charges or security interests of any kind or nature other than those
under the Escrow Agreement. Upon exercise of the Options by Buyer, Seller shall
transfer valid title to all of Seller's Securities to Buyer free from all liens,
charges or security interests of any kind or nature except for (a) restrictions
on transfer pursuant to state and/or federal securities laws and (b) liens and
encumbrances created by Buyer.
(d) NO CONFLICTS. The execution and delivery of this Agreement
by Seller does not, and the performance of the terms of this Agreement by Seller
will not, (a) require Seller to obtain the consent or approval of, or make any
filing with or notification to, any governmental or regulatory authority,
domestic or foreign (other than the filings with the Securities and Exchange
Commission set forth on SCHEDULE B hereto), (b) in the case of a Seller that is
not an individual, conflict with or violate the organizational documents of
Seller, (c) require the consent or approval of any other Person pursuant to any
agreement, obligation or instrument binding on Seller or its properties and
assets, (d) conflict with or violate any organizational document or law, rule,
regulation, order, judgment or decree applicable to Seller or by which any
property or asset of Seller is bound, or (e) violate any other agreement to
which Seller is a party, including, without limitation, any voting agreement,
stockholders agreement, irrevocable proxy, voting trust, the Escrow Agreement or
the Merger Agreement.
5. CERTAIN COVENANTS OF SELLERS.
(a) FURTHER ASSURANCES. Subject to the terms and conditions
set forth in this Agreement each Seller will use his, her or its best efforts,
as promptly as is practicable, to take or cause to be taken all actions, and to
do or cause to be done all other things, as are necessary, proper or advisable
and consistent with the terms and conditions of this Agreement, to consummate
and make effective the transactions contemplated by this Agreement and to
refrain from taking any actions that are contrary to, inconsistent with or
against, or would frustrate the essential purposes of, the transactions
contemplated by this Agreement. Each Seller agrees that
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any lock-up agreement or similar agreement entered into in connection with the
Merger Agreement or otherwise will not conflict with the provisions of this
Agreement.
(b) TRANSFER RESTRICTIONS. Each Seller hereby agrees that
without the prior written consent of Buyer, Seller shall not (a) sell, transfer,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to the sale, transfer,
pledge, encumbrance, assignment other disposition of, or limitation on the
voting rights of, any of the Securities, including pursuant to the Merger
Agreement, (b) grant any proxies or powers of attorney other than those that may
arise pursuant to this Agreement, deposit any Securities into a voting trust or
enter into a voting agreement with respect to any Securities other than those
that may arise pursuant to this Agreement, (c) willfully or intentionally take
any action that would cause any representation or warranty of each Seller
contained herein to become untrue or incorrect or have the effect of preventing
or disabling such Seller from performing its obligations under this Agreement,
or (d) commit or agree to take any of the foregoing actions. Any transfer of the
Securities not permitted hereby shall be null and void. Each Seller agrees that
any such prohibited transfer may and should be enjoined. If any involuntary
transfer of any of the Securities covered hereby shall occur (including, but not
limited to, a sale by a Seller's trustee in bankruptcy, or a sale to a purchaser
at any creditor's or court sale), the transferee (which term, as used herein,
shall include any and all transferees and subsequent transferees of the initial
transferee) shall take and hold such Securities subject to all of the
restrictions, liabilities and rights under this Agreement, which shall continue
in full force and effect. Each Seller agrees that he will cause the certificates
representing the Securities subject to the Options to be conspicuously endorsed
with a legend substantially as follows: "THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO AN OPTION AGREEMENT DATED AS OF AUGUST __, 2007 AMONG
THE HOLDER HEREOF AND RIVERVIEW GROUP LLC AND MAY NOT BE SOLD, TRANSFERRED,
PLEDGED OR OTHERWISE ENCUMBERED EXCEPT AS PROVIDED THEREIN. A COPY OF SUCH
AGREEMENT MAY BE OBTAINED FROM THE HOLDER HEREOF OR FROM RIVERVIEW GROUP LLC AT
RIVERVIEW GROUP LLC'S ADDRESS."
(c) REGISTRATION RIGHTS. Each Seller represents and covenants
that Buyer shall have the rights for the registration under the Securities Act
of 1933, as amended, as granted to the Seller in accordance with the
registration rights provided in that certain Registration Rights Agreement,
dated as of August 3, 2005 among HAQ, the Sellers and certain other stockholders
of HAQ.
6. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
represents and warrants to the Sellers as follows.
(a) ORGANIZATION, GOOD STANDING AND QUALIFICATION. Buyer is a
duly organized and validly existing under the laws of the State of its
organization. Buyer has all requisite limited liability company power and
authority to execute and deliver this Agreement.
(b) AUTHORIZATION; BINDING OBLIGATIONS; GOVERNMENTAL CONSENTS.
(i) All limited liability company actions on the part
of Buyer, its officers, directors and members necessary for the
authorization of this Agreement and the
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performance of all obligations of Buyer hereunder have been taken prior to
the date hereof. This Agreement is a valid and binding obligation of Buyer,
enforceable in accordance with its terms, except as limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
of general application affecting enforcement of creditors' rights; and (ii)
general principles of equity that restrict the availability of equitable
remedies.
(ii) No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of Buyer is
required in connection with the consummation of the transactions
contemplated by this Agreement.
7. CERTAIN COVENANTS OF BUYER.
(a) Buyer hereby agrees that, at the Special Meeting or any
meeting of the stockholders of HAQ, however called, or any adjournment thereof,
or in connection with any solicitation of votes of the stockholders of HAQ by
written consent, Buyer shall be present (in person or by proxy) and vote (or
cause to be voted), or execute a written consent in respect of, all of the
Opposing HAQ Shares owned by it as of the date of such meeting which are
entitled to vote at such meeting or solicitation in favor of the approval or
re-approval of the Merger and the Merger Agreement and all other proposals where
approval of such proposal is a condition to the Merger Agreement, and against
any action or agreement that would prevent or materially delay the consummation
of the Merger or any other transactions contemplated by this Agreement or the
Merger Agreement, or that would be contrary to or inconsistent with, or result
in a breach by the Seller of, or frustrate the essential purposes of this
Agreement or the Merger Agreement. In the event that Buyer is not the owner of
record as of the June 15, 2007, Buyer shall obtain due authorization from any
person or entity from whom it has acquired Common Shares after June 15, 2007
(the "Record Date Seller") the right to vote such Common Shares, or , in the
alternative, obtain a proxy card or other evidence from the Record Date Seller
that the shares owned by the Record Date Seller have been voted in favor of the
Merger and the Merger Agreement and all other proposal submitted by HAQ for vote
of its stockholders as described in the definitive Proxy Statement dated as of
July 13, 2007.
(b) Commencing upon the date hereof and ending on the date
that the options may be exercised, Buyer shall not sell, transfer, pledge,
assign or otherwise dispose of the HAQ shares of common stock underlying the
options or the Options while the options are subject to the escrow agreement and
while the options remain exercisable; provided, however, Buyer shall be entitled
to transfer any Options to an affiliated entity.
8. AMENDMENTS. This Agreement may be amended from time to time
by a written instrument executed and delivered by the parties.
9. REMEDIES. The parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that the parties will have the right to injunctive relief, in
addition to all of its rights and remedies at law or in equity, to enforce the
provisions of this Agreement without the requirement to prove damages or post a
bond. Nothing contained in this Agreement will be construed to confer upon
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any person who is not a signatory hereto or any successor or permitted assign of
a signatory hereto any rights or benefits, as a third party beneficiary or
otherwise.
10. BUYER SUBSTITUTION. Buyer shall have the right to
substitute any one of its affiliates as the purchaser of the Securities that it
has agreed to purchase hereunder, by written notice to the Sellers, which notice
shall be signed by both the Buyer and such affiliate, shall contain such
affiliate's agreement to be bound by this Agreement and shall contain a
confirmation by such affiliate of the accuracy with respect to it of the
representation set forth in Section 5. Upon receipt of such notice, any
reference to Buyer in this Agreement (other than in this Section 10), shall be
deemed to refer to such affiliate in lieu of Buyer.
11. GENERAL PROVISIONS.
(a) NOTICES. Except as otherwise provided herein, any offer,
acceptance, notice or communication required or permitted to be given pursuant
to this Agreement shall be deemed to have been duly and sufficiently given for
all purposes by a party if given by the party, or an officer, trustee, or other
personal or legal representative of such party, or by any other person
authorized to act for such party, if in writing and delivered personally to the
party or to an officer, trustee or other personal or legal representative of the
party, or any other person authorized to act for such party to whom such notice
shall be directed, or sent by overnight delivery service, or certified or
registered mail, postage and registration prepaid, return receipt requested, or
by facsimile to such party's home or business address as reflected on the
signature pages hereto or other address as such party may designate to each of
the other parties hereto by a notice complying with the requirements of this
Section 11(a). Any such notice shall be deemed to have been given on the date on
which the same was delivered in the case of personal delivery, post-marked in
the case of certified or registered mail or overnight delivery service, or dated
in the case of a facsimile.
(b) ASSIGNMENT. Other than as contemplated in Section 10, the
parties hereto shall have no right to assign or transfer this Agreement or any
of their respective rights hereunder.
(c) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the successors, assigns, personal representative,
estates, heirs and legatees of the parties hereto.
(d) MISCELLANEOUS. This Agreement sets forth the entire
understanding of the parties hereto with respect to the transactions
contemplated hereby. The invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of any other term or
provision hereof. The headings in this Agreement are for convenience of
reference only and shall not alter or otherwise affect the meaning hereof. This
Agreement is intended to take effect as a sealed instrument and may be executed
in any number of counterparts which together shall constitute one instrument and
shall be governed by and construed in accordance with the domestic substantive
laws of the State of New York, without giving effect to any choice or conflict
of law provision or rule that would cause the application of the domestic
substantive laws of any other state. Delivery of an executed signature page by
facsimile or other
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electronic transmission shall be effective as delivery of a manually signed
counterpart of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed as of the
date first set forth above.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Address:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Address:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Address:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Address:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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Address:
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Buyer: Riverview Group LLC
By: Integrated Holdings Group LP
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Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Co-President
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SCHEDULE A
Seller Maximum Number of Shares
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 213,249
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 213,249
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 106,624
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 4,886
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ 4,886
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SCHEDULE B
Seller Number of Shares Beneficially Owned
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 982,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 982,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 491,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 22,500
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ 22,500
Seller
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
11
