UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of
Report (Date of earliest event reported): January
19, 2007
HEALTHCARE
ACQUISITION CORP.
(Exact
Name of Registrant as Specified in Charter)
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Delaware
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001-32587
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20-2726770
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(State
or Other Jurisdiction
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(Commission
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(IRS
Employer
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of
Incorporation)
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File
Number)
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Identification
No.)
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2116
Financial Center 666 Walnut Street
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Des
Moines, Iowa
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50309
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant's
telephone number, including area code: (515)
244-5746
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o
Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule
14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant
to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant
to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item
1.01 Entry into a Material Definitive Agreement
Item
2.03 Creation of a Direct Financial Obligation
Warrant
Clarification
On
January 23, 2007, Healthcare Acquisition Corp ("HAQ")
entered into a Warrant Clarification Agreement to clarify the terms of the
Warrant Agreement dated as of July 28, 2005 (the "Warrant
Agreement")
by and
between HAQ and Continental Stock Transfer & Trust Company, as Warrant
Agent.
On
January 23, 2007, HAQ and Maxim Partners, LLC entered into an amendment to
the
Unit Purchase Option issued in connection with the July 2005 initial public
offering of HAQ.
Each
of
the Warrant Clarification Agreement and the amendment to the Unit Purchase
Option, which are filed as exhibits to this Current Report on Form 8-K, clarify
that (i) if a registration statement covering the securities issuable upon
the
exercise of a warrant or the Unit Purchase Option was not effective at the
time
a holder desired to exercise the instrument, then the warrant or Unit Purchase
Option could expire unexercised, and (ii) in no event would HAQ be obligated
to
pay cash or other consideration to the holders of the warrants or the Unit
Purchase Option or "net-cash settle" the obligations of HAQ under any such
agreements.
Advisory
Agreement
Effective
January 19, 2007, HAQ and Maxim Group LLC (“Maxim”)
entered into an advisory agreement pursuant to which Maxim will advise HAQ
in
connection with HAQ’s acquisition of PharmAthene, Inc. (the “Acquisition”).
Under
the terms of this agreement, HAQ will pay to Maxim a success fee of $500,000
upon successful completion of the Acquisition. HAQ will also pay Maxim expenses,
not to exceed an aggregate of $15,000, regardless of the successful closing
of
the Acquisition. Maxim waived any claims it may have as a result of this
agreement against HAQ’s trust fund.
Maxim
served as the lead underwriter for HAQ’s initial public offering.
A
copy of
this advisory agreement is attached as Exhibit 10.1 hereto.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits.
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Exhibit
No.
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Description
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4.1
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Amendment
to Unit Purchase Option
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4.2
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Warrant
Clarification Agreement
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10.1
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Advisory
Agreement
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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Dated:
January 24, 2007
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HEALTHCARE
ACQUISITION CORP.
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By:
/s/ Matthew P.
Kinley
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Matthew P. Kinley
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President
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AMENDMENT
TO
UNIT
PURCHASE OPTION
This
AMENDMENT TO UNIT PURCHASE OPTION (this ‘‘Amendment’’), dated January 23, 2007,
is made by and between Healthcare Acquisition Corp. (the ‘‘Company’’)
and
the holder designated on the signature page hereof (‘‘Holder’’),
to
that certain Unit Purchase Option referred to below.
WHEREAS,
the Company issued that certain Unit Purchase Option, dated July 28, 2006 (the
‘‘Unit
Purchase Option’’),
in
connection with the Company’s initial public offering and the Holder is the
owner of the Unit Purchase Option; and
WHEREAS,
the parties hereto have agreed that the Unit Purchase Option be amended as
set
forth herein to clarify the understanding between the parties with respect
to
the terms of the Unit Purchase Option effective as of the date of its
issuance.
NOW,
THEREFORE, in consideration of the premises and of the agreements contained
herein, the parties hereto hereby agree as follows:
1. To
reflect the original intention of the parties, Section
5.3, Damages,
of the
Unit Purchase Option is and shall be amended and restated in its entirety as
follows:
“5.3 Potential
Expiration; No Obligation to Net-Cash Settle.
Notwithstanding anything to the contrary contained in this Purchase Option,
if
the Company is unable to deliver any securities pursuant to the exercise of
this
Purchase Option as a result of its inability to satisfy its registration
requirements set forth in Section 5 hereof, or an exemption from the
registration requirements of the Securities Act of 1933, as amended, does not
exist, the Purchase Option and the underlying securities may expire unexercised
or unredeemed and the Company will have no obligation to pay such registered
holder any cash or otherwise “net-cash settle” the Purchase Option or the
Warrants underlying the Purchase Option.”
2. Upon
the
due execution and delivery of this Amendment by the parties hereto, on and
after
the date hereof each reference in the Unit Purchase Option to this ‘‘Purchase
Option’’, ‘‘hereunder’’, ‘‘hereof’’, ‘‘herein’’ or words of like import
referring to the Unit Purchase Option shall mean and be a reference to the
Unit
Purchase Option, as amended hereby. Except as specifically amended above, the
Unit Purchase Option shall remain in full force and effect and is hereby
ratified and confirmed.
3. This
Amendment may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which shall be deemed to be
an
original, but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been
signed by each of the parties hereto and delivered to each of the other parties
hereto.
IN
WITNESS WHEREOF, the parties have executed this AMENDMENT TO UNIT PURCHASE
OPTION as of the date first set forth above.
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HEALTHCARE
ACQUISITION CORP.
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By:
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/s/
Matthew P. Kinley
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Name:
Matthew P. Kinley
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Title:
President
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HOLDER
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Maxim
Partners, LLC
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By:
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/s/
Edward Rose
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Name:
Edward Rose
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Title:
Vice Chairman
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2
This
Warrant Clarification Agreement (this “Agreement”), dated January 23, 2007, is
to the Warrant Agreement, dated as of July 28, 2005 (the “Warrant Agreement”),
by and between Healthcare Acquisition Corp., a Delaware corporation (“Company”),
and Continental Stock Transfer & Trust Company, a New York corporation
(“Warrant Agent”).
WHEREAS,
Section
3.3.2 of the Warrant Agreement provides that Company shall not be obligated
to
deliver any securities pursuant to the exercise of a warrant unless a
registration statement under the Securities Act of 1933, as amended (“Securities
Act”), with respect to the common stock is effective.
WHEREAS,
in
furtherance of the foregoing, the Company’s final prospectus, dated July 28,
2005, indicated (i) that no warrant would be exercisable unless at the time
of
exercise a prospectus relating to the common stock issuable upon exercise of
the
warrant is current and the common stock has been registered under the Securities
Act or qualified or deemed to be exempt under the securities laws of the state
of residence of the holder of the warrant and (ii) that the warrant may be
deprived of any value and the market for the warrant may be limited if the
prospectus relating to the common stock issuable upon the exercise of the
warrant is not current or if the common stock is not qualified or exempt from
qualification in the jurisdictions in which the holder of the warrant
resides.
WHEREAS,
as a
result of certain questions that have arisen regarding the accounting treatment
applicable to the warrants, the parties hereto deem it necessary and desirable
to amend the Warrant Agreement to clarify that the registered holders do not
have the right to receive a net cash settlement in the event the Company does
not maintain a current prospectus relating to the common stock issuable upon
exercise of the warrants at the time such warrants are exercisable.
NOW,
THEREFORE,
in
consideration of the mutual agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree
to amend the Warrant Agreement as set forth herein.
1. Warrant
Agreement.
The
Warrant Agreement is hereby clarified by adding the following sentence as the
penultimate sentence of Section 3.3.2:
“Accordingly,
the Warrants may expire unexercised or unredeemed if there is no effective
registration statement and the Company would have no obligation to pay such
registered holder any cash or other consideration or otherwise “net cash settle”
the Warrant.”
2. Miscellaneous.
(a)
Governing
Law.
The
validity, interpretation, and performance of this Agreement and of the Warrants
shall be governed in all respects by the laws of the State of New York, without
giving effect to conflicts of law principles that would result in the
application of the substantive laws of another jurisdiction. The Company hereby
agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Agreement shall be brought and enforced in the
courts of the State of New York or the United States District Court for the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served upon the Company may be served
by transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
9.2 of the Warrant Agreement. Such mailing shall be deemed personal service
and
shall be legal and binding upon the Company in any action, proceeding or
claim.
(b)
Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and to their respective heirs, legal representatives, successors and
assigns.
(c)
Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding between the parties
as to the subject matter thereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among them.
Except as set forth in this Agreement, provisions of the Warrant Agreement
which
are not inconsistent with this Agreement shall remain in full force and effect.
This Agreement may be executed in counterparts.
(d)
Severability.
This
Agreement shall be deemed severable, and the invalidity or unenforceability
of
any term or provision hereof shall not affect the validity or enforceability
of
this Agreement or of any other term or provision hereof. Furthermore, in lieu
of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as part of this Agreement a provision as similar
in
terms to such invalid or unenforceable provision as may be possible and be
valid
and enforceable.
IN
WITNESS WHEREOF, the parties hereto have executed this Warrant Clarification
Agreement as of the date first written above.
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HEALTHCARE
ACQUISITION CORP.
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By:
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/s/
Matthew P. Kinley
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Name:
Matthew P. Kinley
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Title:
President
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CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
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By:
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/s/ Felix
Orihuela
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Name:
Felix Orihuela
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Title:
Vice President
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Dated
as
of January 8,
2007
Mr.
John
Pappajohn
Chairman
Healthcare
Acquisition Corp.
2116
Financial Center
666
Walnut Street
Des
Moines, IA 50309
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Re:
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Letter
of Engagement
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Dear
Mr.
Pappajohn:
The
purpose of this Advisory Agreement (“Agreement”)
is to
confirm the agreement between Healthcare Acquisition Corp., a Delaware
corporation (“Company”),
and
Maxim Group LLC (“Maxim”),
a New
York
limited
liability company whose offices are located in New York City, New York with
respect to the matters herein set forth.
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1.
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Relationship.
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A. The
Company appoints Maxim as its lead merger and acquisition advisor to assist
and
advise the Company with respect to the Company’s proposed acquisition (the
“Transaction”) of PharmaAthene, Inc. (the “Target”)
and
Maxim accepts such retention upon the terms and conditions contained herein.
In
connection with its retention hereunder, Maxim may provide certain or all of
the
following services in connection with the potential Transaction(s): (a)
review
the Company’s presentation and marketing materials and other materials used to
present the Company to the investment community;
(b)
organize
institutional and retail road shows for
management of the Company to
present to; (c)
increase exposure to the investment community and assist in broadening the
investor base through both retail and institutional roadshows; (d) and provide
such other financial advisory services upon which the parties may mutually
agree (hereinafter
referred to as the “Advisory
Services”).
It is
expressly understood and agreed that Maxim shall be required to perform only
such Advisory Services as may be necessary or desirable in connection with
a
Transaction and therefore may not perform all of the tasks enumerated above
during the term of this Agreement. It is further understood that Maxim’s
Advisory Services may not be limited to those enumerated in this paragraph,
as
the circumstances require.
B. It
is
expressly understood and agreed by both parties that the Company will not
utilize the Advisory Services performed by Maxim for any purpose other than
that
which is specifically contemplated by this Agreement, and that Maxim’s Advisory
Services are confidential and shall not in no way be communicated to any third
party(s) interested in engaging in a Transaction except to the extent that
such
disclosure is required by law, including the federal securities laws, rule,
regulation or judicial or administrative process. For the point of further
clarification, it is further understood and agreed by the parties to this
Agreement that Maxim’s Advisory Services do not contemplate the rendering of a
fairness opinion for use in any filing with the Securities and Exchange
Commission or any proxy materials to be sent to the Company’s shareholders and
the Company shall not use any of the materials prepared by Maxim for any purpose
other than internal use without the prior express written consent and approval
of Maxim except to the extent such use is required to enable the Company to
comply with its obligations under any law, rule, regulation or judicial or
administrative process. Notwithstanding anything contained herein, the Company
understands and agrees that Maxim shall
not
provide “proxy solicitation” services to the Company and shall not be
recommending to shareholders of
the
Company the
manner in which
such
shareholders should vote with respect to any Transaction.
Members
NASD & SIPC
405
Lexington Ave. * New York, NY 10174 * tel (212) 895-3500 * (800) 724-0761 *
fax
(212) 895-3783 * www.maximgrp.com
New
York,
NY * Woodbury, NY * Chicago, IL* Red Bank, NJ * Baltimore, MD
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Healthcare
Acquisition Corp.
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January
8, 2007
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Page
2 of 9
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C. As
used
in this Agreement, the term “Transaction”
shall
mean, whether effected directly or indirectly or in one transaction or a series
of transactions, the acquisition
through a merger, capital stock exchange, asset acquisition, stock acquisition
or other similar business combination of one or more businesses in the
heatlhcare industry
and/or
other related industries.
2. Term
of Agreement.
This
Agreement will terminate on
the
earlier of (i) August 3, 2007 or (ii) the Close (as defined in paragraph 3
below) unless earlier terminated pursuant to Section 6 herein or extended to
another date mutually agreed to in writing (such date of termination, the
“Termination
Date”).
This
Agreement shall not be in effect until execution of a definitve acquisition
agreement between the Company and the Target, except with respect to the payment
of expenses under Section 4 hereof.
3. A. Financial
Advisor Fee. For
providing the Advisory Services, Maxim shall be paid a cash fee of $500,000
(the
“Success
Fee”).
The
Company shall
pay
the
Success Fee
to Maxim
at the Close (as defined in paragraph 3 below) of such
Transaction.
B. As
used
herein, the term “Close”
occurs
at the
time
of
consummation of
the
Transaction.
C. In
no
event shall any obligations of the Company to pay fees or any other compensation
to any other advisor or any other person in connection with any Transaction
reduce the
Success
Fee and other expenses payable by the Company to Maxim under this
Agreement.
D. The
Company acknowledges and agrees that any compensation payable or paid to Maxim
hereunder shall not be construed or characterized as compensation to an
underwriter within the meaning of the rules of the NASD. The Company recognizes
that the fees and expenses payable to Maxim under the terms of this Agreement
do
not waive or in any way obviate the Company’s obligation to pay any of the
previously agreed upon deferred compensation due and payable to Maxim under
the
terms of the Underwriting Agreement dated July 28, 2005, between Maxim and
the
Company
(the
“Underwriting Agreement”). The Company and Maxim agree and acknowledge that such
deferred compensation shall be payable to Maxim as set forth in the Undewriting
Agreement.
E. In
the
event the Company desires to engage Maxim to: (i) provide placement agency
or
similar fund raising services , such engagement shall be memorialized in
separate agreements between the Company and Maxim which shall contain such
terms
and provisions relating thereto as the parties may agree upon.
4. Expenses.
In
addition to the fees payable hereunder, and regardless of whether any
Transaction is proposed or consummated, the Company shall reimburse Maxim for
all reasonable out of pocket expenses incurred by Maxim for legal, travel,
food,
lodging up to an aggregate of $15,000 in
connection with the services performed by Maxim pursuant to this Agreement.
Such
expenses shall be paid within thirty (30) days from the date an invoice is
submitted to the Company.
Members
NASD & SIPC
405
Lexington Ave. * New York, NY 10174 * tel (212) 895-3500 * (800) 724-0761 *
fax
(212) 895-3783 * www.maximgrp.com
New
York,
NY * Woodbury, NY * Chicago, IL* Red Bank, NJ * Baltimore, MD
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Healthcare
Acquisition Corp.
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January
8, 2007
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Page 3
of 9
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5. Independent
Contractor.
The
parties agree that Maxim is acting solely as an independent contractor under
this Agreement. Maxim is not authorized to make any representations, warranties,
agreements, covenants or commitments of any nature whatsoever on behalf of
the
Company not contemplated by this Agreement, unless and then only to the extent
expressly authorized in writing by the Company to do so.
6. Termination.
The
Company or Maxim may terminate this Agreement at any time upon thirty (30)
days
prior written notice to the other party; provided, however, that the Company
may
only terminate this Agreement in the event that Maxim is in material breach
of
its obligations under the terms of this Agreement and provided that the Company
shall have provided Maxim with a right to cure such breach. Notwithstanding
any
such termination, Maxim shall nonetheless be entitled to receive all amounts
due
to Maxim in consideration for services rendered hereunder by Maxim to the extent
provided in paragraphs 3 and 4 hereof.
7. Indemnification.
The
Company agrees to indemnify and hold harmless Maxim, including any affiliated
companies, and their respective officers, directors, controlling persons and
employees and any persons retained in connection with this Agreement in
accordance with the terms set forth in Exhibit
A
of this
letter.
8. Information;
Confidentiality.
During
the term of this Agreement, the Company agrees to cooperate with Maxim and
to
furnish, or cause to be furnished, to Maxim, any and all information and data
concerning the Company and a Transaction that Maxim deems appropriate in
connection with the rendering of its services hereunder.
The
Company agrees that any information or advice rendered by Maxim or its or its
officers, employees, agents and representatives (“Representatives”)
in
connection with its engagement hereunder is solely for the Company’s
confidential use in connection with its evaluation of a Transaction. Except
as
otherwise required by law, rule,
regulation, or judicial or administrative process, the Company will not, and
will not permit any third party to, disclose or otherwise refer to such advice
or information without Maxim’s prior written consent.
Except
as
contemplated by the terms hereof or as required by applicable law, rule,
regulation or judicial or administrative process, Maxim and its Representatives
shall keep confidential all non-public information (“Information”)
provided to it by or on behalf of the Company (including, without limitation,
Information relating to the Transaction and Information regarding the Target).
For purposes of this paragraph, the term Information shall not include
information that: (a) is, at the time of disclosure, or subsequently enters
the
public domain without a breach by Maxim of any obligation owed to the Company;
(b) became known to Maxim prior to the Company’s disclosure of such Information
to Maxim; (c) became known to Maxim from a source other than the Company, and
other than by the breach of an obligation of confidentiality owed to the
Company; or
(d) is
disclosed by the Company to a third party without restrictions on its
disclosure. The Company and Maxim acknowledge and agree that this Agreement
and
the terms of this Agreement are confidential and except as required by law
(including, without limitation, any proxy statement or similar filing with
the
SEC in connection with the Transaction) will not be disclosed to anyone other
than the officers, employees and directors of the Company and Maxim and their
respective accountants and legal counsel. Maxim acknowledges that the
confidentiality provisions of this Agreement shall be deemed to be an agreement
to keep the Information in confidence as contemplated by Regulation FD
promulgated by the Securities and Exchange Commission. In addition, Maxim
acknowledges and agrees that some of the Information may be considered “material
non-public information” for purposes of the federal securities laws
(“Insider
Information”)
and
that Maxim and its Representatives will abide by all securities laws relating
to
the handling of and acting upon Insider Information related to the Company
and
the Target. Further, Maxim shall comply with all securities laws and
regulations,, including, without limitation, Regulation M, in connection with
the performance of its duties hereunder.
Members
NASD & SIPC
405
Lexington Ave. * New York, NY 10174 * tel (212) 895-3500 * (800) 724-0761
* fax
(212) 895-3783 * www.maximgrp.com
New
York,
NY * Woodbury, NY * Chicago, IL* Red Bank, NJ * Baltimore, MD
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Healthcare
Acquisition Corp.
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January
8, 2007
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Page 4
of 9
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9. Certain
Representations and Warranties of the Company.
The
Company represents and warrants to Maxim that neither the execution of this
Agreement nor the consummation of any Transaction contemplated by this Agreement
will conflict with or result in a breach of any of the terms and provisions
of,
or constitute a default (or an event which with notice or the lapse of time,
or
both, would constitute a default) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company
pursuant to any oral or written agreement, understanding or arrangement to
which
the Company or its affiliates is a party.
10. Waiver
Against Trust Fund.
Reference is made to the Final Prospectus of the Company, dated July 28, 2005
(the “Prospectus”).
Maxim
and its authorized signatory indicated below have read the Prospectus and
understand that the Company has established a trust fund (collectively with
the
initial principal and interest accrued from time to time thereon, the
“Trust
Fund”),
initially in an amount of at least $64,980,000 for the benefit of the Company’s
public stockholders (the “Public
Stockholders”)
and
the underwriters of the Company’s initial public offering and that, except for a
portion of the interest earned on the amounts held in the Trust Fund, the
Company may disburse monies from the Trust Fund only: (i) to the Public
Stockholders in the event of the redemption of their shares or the dissolution
and liquidation of the Company or (ii) to the Company and such underwriters
after the Company consummates a business combination (as described in the
Prospectus).
For
and
in consideration of the Company agreeing to retain Maxim to provide services
to
the Company, and
for
other good and valuable consideration, the receipt and sufficiency of which
is
hereby acknowledged, Maxim
hereby agrees that Maxim does not now and shall not at any time hereafter have
any claim to, or make any claim against, the Trust Fund, regardless of whether
such claim arises as a result of, in connection with or relating in any way
to,
the business relationship between the Company and Maxim, this waiver letter
or
any other matter, and regardless of whether such claim arises based on contract,
tort, equity or any other theory of legal liability (any and all such claims
are
collectively referred to hereafter as the “Claims”).
Maxim
hereby irrevocably waives any Claim it may have, now or in the future, and
will
not seek recourse against, the Trust Fund for any reason whatsoever. In the
event that Maxim commences any action or proceeding based upon, in connection
with, relating to or arising out of any matter relating to the Company, which
proceeding seeks, in whole or in part, relief against the Trust Fund or the
Public Stockholders, whether in the form of money damages or injunctive relief,
in which the Company or the Public Stockholders prevail, whether on the merits
or otherwise, then the Company shall be entitled to recover from Maxim and/or
the party(ies) who commenced the action or proceeding, the legal fees and
associated costs required to defend such action.
The
foregoing waiver shall not apply to claims Maxim may have under applicable
agreements against the Trust Fund for deferred compensation of Maxim (as
described in the Propsectus) which is held in the Trust Fund and is payable
to
Maxim upon the consummation of the Transaction.
Members
NASD & SIPC
405
Lexington Ave. * New York, NY 10174 * tel (212) 895-3500 * (800) 724-0761 *
fax
(212) 895-3783 * www.maximgrp.com
New
York,
NY * Woodbury, NY * Chicago, IL* Red Bank, NJ * Baltimore, MD
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Healthcare
Acquisition Corp.
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January
8, 2007
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Page 5
of 9
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11. Disclaimers.
The
Company agrees that any and all decisions, acts, actions, or omissions with
respect to the Target and any Transaction shall be the sole responsibility
of
the Company, and that the performance by Maxim of services hereunder will in
no
way expose Maxim to any liability for any such decisions, acts, actions or
omissions of the Company.
12. Choice
of Law; Venue; Attorney’s Fees; Waiver of Jury Trial.
This
Agreement shall be governed by the internal laws of the State of New York,
without regard to conflict of laws principles. Each of Maxim and the Company:
(i) agrees that any legal suit, action or proceeding arising out of or relating
to this engagement letter and/or the transactions contemplated hereby shall
be
instituted exclusively in New York Supreme Court, County of New York, or in
the
United States District Court for the Southern District of New York, (ii) waives
any objection which it may have or hereafter
has
to the
venue of any such suit, action or proceeding, and (iii) irrevocably consents
to
the jurisdiction of the New York Supreme Court, County of New York, and the
United States District Court for the Southern District of New York in any such
suit, action or proceeding. Each of Maxim and the Company further agrees to
accept and acknowledge service of any and all process which may be served in
any
such suit, action or proceeding in the New York Supreme Court, County of New
York, or in the United States District Court for the Southern District of New
York and agrees that service of process upon the Company mailed by certified
mail to the Company’s address shall be deemed in every respect effective service
of process upon the Company, in any such suit, action or proceeding, and service
of process upon Maxim mailed by certified mail to Maxim’s address shall be
deemed in every respect effective service process upon Maxim, in any such suit,
action or proceeding.
If
any
party to this Agreement brings an action directly or indirectly based upon
this
Agreement or the matters contemplated hereby, the prevailing party shall be
entitled to recover, in addition to any other appropriate amounts, its
reasonable costs and expenses in connection with such proceeding, including,
but
not limited to reasonable attorneys’ fees and court costs. Any
right
to trial by jury with respect to any law suit, claim or other proceeding arising
out of or relating to this Agreement or the services to be rendered by Maxim
hereunder is expressly and irrevocably waived by the parties hereto.
13. Parties.
Nothing
in this Agreement, expressed or implied, is intended to confer or does confer
on
any person or entity other than the parties hereto and their respective
successors and assigns and, to the extent expressly set forth herein, the
Indemnified Persons (as defined on Exhibit
A
hereto),
any rights or remedies under or by reason of this Agreement or as a result
of
the services to be rendered by Maxim hereunder.
14. Severability.
In the
event that any term or provision of this Agreement shall be held to be illegal
or unenforceable, the entire Agreement shall not fail on account thereof. It
is
further agreed that if any one or more of such paragraphs or provisions shall
be
judged to be void as going beyond what is reasonable in all of the circumstances
for the protection of the interests of the Company, but would be valid if part
of the wording thereof were deleted or the period thereof reduced or the range
of activities covered thereby reduced in scope, the said reduction shall be
deemed to apply with such modifications as may be necessary to make them valid
and effective and any such modification shall not thereby affect the validity
of
any other paragraph or provisions contained in this Agreement.
15. Review
by Counsel.
This
Agreement has been reviewed by the signatories hereto and their counsel. There
shall be no construction of any provision against Maxim because this Agreement
was drafted by Maxim, and the parties waive any statute or rule of law to such
effect.
Members
NASD & SIPC
405
Lexington Ave. * New York, NY 10174 * tel (212) 895-3500 * (800) 724-0761 *
fax
(212) 895-3783 * www.maximgrp.com
New
York,
NY * Woodbury, NY * Chicago, IL* Red Bank, NJ * Baltimore, MD
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Healthcare
Acquisition Corp.
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January
8, 2007
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Page 6
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16. Credit.
Subject
to applicable securities laws and regulations, Maxim may, at its own expense,
place announcements in financial and other newspapers and periodicals describing
its services in connection with the Transaction. The content of any such
announcement shall be subject to the Company’s prior approval, which approval
shall not be unreasonably withheld or delayed.
17. Survival
of Certain Provisions.
The
provisions of Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 20,
21
and this Section 17, shall survive any termination of this
Agreement.
18. Entire
Agreement.
This
Agreement and the schedule hereto sets forth the entire understandings of the
parties relating to the subject matter hereof and supersedes and cancels any
prior or contemporaneous communications, understandings or agreements between
the parties hereto. The parties mutually agree that this Agreement shall in
no
way obviate, amend or affect the terms, conditions and/or attendant obligations
of any agreements between the Company and Maxim, including, without limitation,
the Underwriting Agreement dated as of July 28, 2005.
19. Modification.
This
Agreement may not be altered, amended, changed or modified, nor can any of
its
provisions be waived, except by written amendment signed by both parties
hereto.
20. Counterparts.
This
Agreement may be executed in counterparts and by facsimile, each of which,
when
taken together, shall constitute one and the same agreement.
21. Notices.
All
notices provided hereunder shall be given in writing and either delivered
personally or by overnight courier service or sent by certified mail, return
receipt requested, or by facsimile transmission, if to Maxim, to:
Maxim
Group LLC
405
Lexington Avenue
New
York,
New York 10174
Attention:
Edward L. Rose, Esq., General Counsel
Fax
No.
(212) 895-3860
as
well
as to:
James
E.
Siegel, Esq., Assistant General Counsel,
Fax
No.
(212) 895-3888,
And
if to
the Company, to the addresses, set forth on the first page of this Agreement,
Attention, John Pappajohn. Any notice delivered personally or by fax shall
be
deemed given upon receipt (with confirmation of receipt required in the case
of
fax transmissions); any notice given by overnight courier shall be deemed given
on the next business day after delivery to the overnight courier; and any notice
given by certified mail shall be deemed given upon the second business day
after
certification thereof.
(Signature
Page to follow)
Members
NASD & SIPC
405
Lexington Ave. * New York, NY 10174 * tel (212) 895-3500 * (800) 724-0761
* fax
(212) 895-3783 * www.maximgrp.com
New
York,
NY * Woodbury, NY * Chicago, IL* Red Bank, NJ * Baltimore, MD
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Healthcare
Acquisition Corp.
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January
8, 2007
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Page 7
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If
the
foregoing correctly sets forth our agreement with respect to the matters
addressed herein, please so confirm by signing and returning one copy of this
letter. Your signature below shall indicate the Company’s agreement to the terms
hereof. We look forward to working with you.
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Sincerely,
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MAXIM
GROUP LLC
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/s/
Andrew H. Scott
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Name:
Andrew H. Scott
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Title:
Managing Director
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/s/
Clifford A. Teller
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Name:
Clifford A. Teller
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Title:
Director of Investment Banking
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AGREED
TO
AND ACCEPTED:
HEALTHCARE
ACQUISITION CORP.
/s/
John Pappajohn_________________
Name:
John Pappajohn
Title:
Chairman
Members
NASD & SIPC
405
Lexington Ave. * New York, NY 10174 * tel (212) 895-3500 * (800) 724-0761 *
fax
(212) 895-3783 * www.maximgrp.com
New
York,
NY * Woodbury, NY * Chicago, IL* Red Bank, NJ * Baltimore, MD
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Healthcare
Acquisition Corp.
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January
8, 2007
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Page 8
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Exhibit
A
INDEMNIFICATION
PROVISIONS
Capitalized
terms used in this Exhibit shall have the meanings ascribed to such terms in
the
Agreement to which this Exhibit is attached.
The
Company agrees to indemnify and hold harmless Maxim and each of the other
Indemnified Parties (as hereinafter defined) from and against any and all
losses, claims, damages, obligations, penalties, judgments, awards, liabilities,
costs, expenses and disbursements, and any and all actions, suits, proceedings
and investigations in respect thereof and any and all reasonable legal and
other
costs, expenses and disbursements in giving testimony or furnishing documents
in
response to a subpoena or otherwise (including, without limitation, the costs,
expenses and disbursements, as and when incurred, of investigating, preparing,
pursing or defending any such action, suit, proceeding or investigation (whether
or not in connection with litigation in which any Indemnified Party is a party))
(collectively, “Losses”),
directly or indirectly, caused by, relating to, based upon, arising out of,
or
in connection with, Maxim’s acting for the Company, including, without
limitation, any act or omission by Maxim in connection with its acceptance
of or
the performance or non-performance of its obligations under the Agreement
between the Company and Maxim to which these indemnification provisions are
attached and form a part (the “Agreement”),
any
breach by the Company of any representation, warranty, covenant or agreement
contained in the Agreement (or in any instrument, document or agreement relating
thereto, including any Agency Agreement), or the enforcement by Maxim of its
rights under the Agreement or these indemnification provisions, except to the
extent that any such Losses are found in a final judgment by a court of
competent jurisdiction (not subject to further appeal) to have resulted
primarily and directly from the gross negligence or willful misconduct of the
Indemnified Party seeking indemnification hereunder. The Company also agrees
that no Indemnified Party shall have any liability (whether direct or indirect,
in contract or tort or otherwise) to the Company for or in connection with
the
engagement of Maxim by the Company or for any other reason, except to the extent
that any such liability is found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted primarily and
directly from such Indemnified Party’s bad faith, gross negligence or willful
misconduct.
These
Indemnification Provisions shall extend to the following persons (collectively,
the “Indemnified
Parties”):
Maxim, its present and former affiliated entities, managers, members, officers,
employees, legal counsel, agents and controlling persons (within the meaning
of
the federal securities laws), and the officers, directors, partners,
stockholders, members, managers, employees, legal counsel, agents and
controlling persons of any of them. These indemnification provisions shall
be in
addition to any liability which the Company may otherwise have to any
Indemnified Party.
If
any
action, suit, proceeding or investigation is commenced, as to which an
Indemnified Party proposes to demand indemnification, it shall notify the
Company with reasonable promptness; provided,
however,
that
any failure by an Indemnified Party to notify the Company shall not relieve
the
Company from its obligations hereunder. An Indemnified Party shall have the
right to retain counsel of its own choice to represent it, and the fees,
expenses and disbursements of such counsel shall be borne by the Company. Any
such counsel shall, to the extent consistent with its professional
responsibilities, cooperate with the Company and any counsel designated by
the
Company. The Company shall be liable for any settlement of any claim against
any
Indemnified Party made with the Company’s written consent. The Company shall
not, without the prior written consent of Maxim, settle or compromise any claim,
or permit a default or consent to the entry of any judgment in respect thereof,
unless such settlement, compromise or consent (i) includes, as an unconditional
term thereof, the giving by the claimant to all of the Indemnified Parties
of an
unconditional release from all liability in respect of such claim, and (ii)
does
not contain any factual or legal omission by or with respect to an Indemnified
Party or an adverse statement with respect to the character, professionalism,
expertise or reputation of any Indemnified Party or any action or inaction
of
any Indemnified Party.
Members
NASD & SIPC
405
Lexington Ave. * New York, NY 10174 * tel (212) 895-3500 * (800) 724-0761 *
fax
(212) 895-3783 * www.maximgrp.com
New
York,
NY * Woodbury, NY * Chicago, IL* Red Bank, NJ * Baltimore, MD
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Healthcare
Acquisition Corp.
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January
8, 2007
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In
order
to provide for just and equitable contribution, if a claim for indemnification
pursuant to these indemnification provisions is made but it is found in a final
judgment by a court of competent jurisdiction (not subject to further appeal)
that such indemnification may not be enforced in such case, even though the
express provisions hereof provide for indemnification in such case, then the
Company shall contribute to the Losses to which any Indemnified Party may be
subject (i) in accordance with the relative benefits received by the Company
and
its stockholders, subsidiaries and affiliates, on the one hand, and the
Indemnified Party, on the other hand, and (ii) if (and only if) the allocation
provided in clause (i) of this sentence is not permitted by applicable law,
in
such proportion as to reflect not only the relative benefits, but also the
relative fault of the Company, on the one hand, and the Indemnified Party,
on
the other hand, in connection with the statements, acts or omissions which
resulted in such Losses as well as any relevant equitable considerations. No
person found liable for a fraudulent misrepresentation shall be entitled to
contribution from any person who is not also found liable for fraudulent
misrepresentation. The relative benefits received (or anticipated to be
received) by the Company and it stockholders, subsidiaries and affiliates shall
be deemed to be equal to the aggregate consideration payable or receivable
by
such parties in connection with the transaction or transactions to which the
Agreement relates relative to the amount of fees actually received by Maxim
in
connection with such transaction or transactions. Notwithstanding the foregoing,
in no event shall the amount contributed by all Indemnified Parties exceed
the
amount of fees previously received by Maxim pursuant to the
Agreement.
Neither
termination nor completion of the Agreement shall affect these Indemnification
Provisions which shall remain operative and in full force and effect. The
Indemnification Provisions shall be binding upon the Company and its successors
and assigns and shall inure to the benefit of the Indemnified Parties and their
respective successors, assigns, heirs and personal representatives.
Members
NASD & SIPC
405
Lexington Ave. * New York, NY 10174 * tel (212) 895-3500 * (800) 724-0761
* fax
(212) 895-3783 * www.maximgrp.com
New
York,
NY * Woodbury, NY * Chicago, IL* Red Bank, NJ * Baltimore, MD