SECURITIES & EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
SCHEDULE 13D*
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
PharmAthene, Inc.
(f.k.a. Healthcare Acquisition Corp.)
------------------------------------------------------
(Name of Issuer)
Common Stock, $0.001 par value per share
------------------------------------------------------
(Title of Class of Securities)
42224H104
------------------------------------------------------
(CUSIP NUMBER)
Simon M. Lorne, Esq.
c/o Millennium Management, L.L.C.
666 Fifth Avenue
New York, New York 10103
(212) 841-4100
------------------------------------------------------
(Name, address and telephone number of person
authorized to receive notices and communications)
August 3, 2007
------------------------------------------------------
(Date of event which requires filing of this statement))
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
NOTE: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 13d-7 for other
parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 12 Pages)
- --------------------------------------------------------------------------------
The information required in the remainder of this cover page shall not be
deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act
of 1934 ("Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP No. 42224H104 13D Page 2 of 12 Pages
- --------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY)
Millenco, L.L.C. 13-3532932
- --------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------
(3) SEC USE ONLY
- --------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
WC, OO
- --------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [X]
- --------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES -----------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
1,205,894 shares of Common Stock (see Items 4 and 5)
OWNED BY -----------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING -----------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
1,205,894 shares of Common Stock (see Items 4 and 5)
- --------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
1,205,894 shares of Common Stock (see Items 4 and 5)
- --------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
- --------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
4.99% (see Item 5)
- --------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
OO, BD
- --------------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 42224H104 13D Page 3 of 12 Pages
- --------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Millennium Management, L.L.C. 13-3804139
- --------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
(3) SEC USE ONLY
- --------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
WC, OO
- --------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [X]
- --------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES -----------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
1,205,894 shares of Common Stock (see Items 4 and 5)
OWNED BY -----------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING -----------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
1,205,894 shares of Common Stock (see Items 4 and 5)
- --------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
1,205,894 shares of Common Stock (see Items 4 and 5)
- --------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
- --------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
4.99% (see Item 5)
- --------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
OO
- --------------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 42224H104 13D Page 4 of 12 Pages
- --------------------------------------------------------------------------------
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Israel A. Englander
- --------------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
(3) SEC USE ONLY
- --------------------------------------------------------------------------------
(4) SOURCE OF FUNDS **
WC, OO
- --------------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [X]
- --------------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES -----------------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
1,205,894 shares of Common Stock (see Items 4 and 5)
OWNED BY -----------------------------------------------------------------
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING -----------------------------------------------------------------
PERSON WITH (10) SHARED DISPOSITIVE POWER
1,205,894 shares of Common Stock (see Items 4 and 5)
- --------------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
1,205,894 shares of Common Stock (see Items 4 and 5)
- --------------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
- --------------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
4.99% (see Item 5)
- --------------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON **
IN
- --------------------------------------------------------------------------------
** SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 42224H104 13D Page 5 of 12 Pages
Item 1. Security and Issuer.
This statement relates to the Common Stock, par value $0.001 per share
(the "Common Stock") of PharmAthene, Inc. (formerly known as Healthcare
Acquisition Corp.), a Delaware corporation (the "Company"). The Company's
principal executive offices are located at 2116 Financial Center, 666 Walnut
Street, Des Moines, Iowa 50309.
Item 2. Identity and Background.
(a)-(c), (f). This statement is being filed by Millenco, L.L.C., a
Delaware limited liability company (formerly Millenco, L.P., a Delaware limited
partnership) ("Millenco"). Millenco is a broker-dealer and a member of the
American Stock Exchange and the NASDAQ. Millennium Management, L.L.C., a
Delaware limited liability company ("Millennium Management"), is the manager of
Millenco, and consequently may be deemed to have voting control and investment
discretion over securities owned by Millenco. Israel A. Englander ("Mr.
Englander") is the managing member of Millennium Management. As a result, Mr.
Englander may be deemed to be the beneficial owner of any shares deemed to be
beneficially owned by Millennium Management. The foregoing should not be
construed in and of itself as an admission by Millennium Management or Mr.
Englander as to beneficial ownership of the shares owned by Millenco.
The business address for Millenco, Millennium Management and Mr.
Englander is c/o Millennium Management, L.L.C., 666 Fifth Avenue, New York, New
York 10103. Mr. Englander is a United States citizen.
Note: Integrated Holding Group, L.P., a Delaware limited partnership
("Integrated Holding Group"), is a non-managing member of Millenco. As a
non-managing member, Integrated Holding Group has no voting control or
investment discretion over Millenco or its securities positions.
Riverview Group, L.L.C. ("Riverview"), an affiliate of the Reporting
Persons that is a party to the agreements relating to the acquisition of shares
of Common Stock attached hereto as Exhibits 2-7, is not a Reporting Person on
this Schedule as securities acquired by Riverview were acquired after the
Reporting Persons no longer held 5% of the outstanding shares of Common Stock.
(d) During the last five years, none of the Reporting Persons has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) On December 1, 2005, Millennium Management and Mr. Englander, together
with Millennium Partners, L.P. ("Millennium Partners") and certain related
persons and entities, entered into settlements with the Securities and Exchange
Commission ("SEC") and the Attorney General of the State of New York (the
"NYAG") relating to allegations that Millennium Partners had engaged in a
pattern of deceptive "market timing" of mutual fund shares in years prior to
2004 and, in the case of the settlement with the NYAG only,
CUSIP No. 42224H104 13D Page 6 of 12 Pages
had failed to take adequate steps to prevent a trader from engaging in mutual
fund "late trading" in violation of firm policy. The parties neither admitted
nor denied the allegations or findings (except as to jurisdiction) but consented
to the entry of findings. The SEC proceedings are In the Matter of Millennium
Partners, L.P., et al. Securities Act Release No. 8639 (December 1, 2005),
available at www.sec.gov. Contemporaneously, the NYAG issued an Assurance of
Discontinuance relating to the claims and findings of that office.
Neither the Reporting Persons nor any other party admitted or denied any of
the allegations or findings in these matters. The remedies included disgorgement
by the entities of approximately $148 million of mutual fund trading profits,
civil penalties aggregating approximately $32.15 million (with approximately $30
million being paid by Mr. Englander), an administrative order to cease and
desist from violations of the antifraud provisions of the Securities Act of 1933
and the Securities Exchange Act of 1934 (the "Exchange Act"), and prophylactic
relief.
Item 3. Source and Amount of Funds and Other Consideration.
The amount of funds used to purchase the (a) 984,500 shares of Common
Stock, the (b) 457,610 warrants, and the (c) 205,394 shares of Common Stock held
by the Reporting Persons in the transactions giving rise to this Schedule 13D
was approximately (a) $7,531,228, (b) $476,875, and (c) $100, respectively.
Millenco effects purchases of securities primarily through margin accounts
maintained for it with prime brokers, which may extend margin credit to Millenco
as and when required to open or carry positions in the margin accounts, subject
to applicable federal margin regulations, stock exchange rules and the prime
broker's credit policies. In such instances, the positions held in the margin
accounts are pledged as collateral security for the repayment of debit balances
in the accounts.
Item 4. Purpose of the Transaction.
The purpose of the acquisition of the shares of Common Stock by the
Reporting Persons is for investment. Although the acquisition of the shares of
Common Stock by the Reporting Persons is for investment purposes, the shares of
Common Stock were purchased with the intent of voting in favor of the then
proposed merger ("Merger") with PharmAthene, Inc., a Delaware corporation
("PHA"), pursuant to the Agreement and Plan of Merger, dated as of January 19,
2007, by and among the Company, PAI Acquisition Corp and PHA, and the
transactions contemplated thereby, whereby PHA became a wholly-owned subsidiary
of the Company (the "Merger Proposal"). The Merger was consummated on August 3,
2007.
In consideration of the Reporting Persons' vote in favor of the Merger
Proposal, the Reporting Persons received an option to purchase 542,894 shares of
Common Stock of the Company from the sellers named therein at a price of $0.0001
per share and are entitled to receive a number of shares of Common Stock between
114,624 and 205,394. The number of shares of Common Stock that the Reporting
Persons will actually receive may be fewer than 205,394 based upon the number of
shares voted in favor of the Merger Proposal. For purposes of the calculations
included in this statement, we have assumed the ownership by the Reporting
Persons of the maximum number of shares of Common Stock to which they may become
entitled.
CUSIP No. 42224H104 13D Page 7 of 12 Pages
Although the acquisition of the shares of Common Stock by the Reporting
Persons is for investment purposes, the Reporting Persons may pursue discussions
with management in an effort to maximize long-term value for shareholders. Each
of the Reporting Persons may make further purchases of shares of Common Stock
from time to time and may dispose of any or all of the shares of Common Stock
held at any time. None of the Reporting Persons has any plans or proposals which
relate to, or could result in, any of the matters referred to in paragraphs (b)
through (j), inclusive, of Item 4 of the Schedule 13D. Each of the Reporting
Persons may, at any time and from time to time, review or reconsider his or its
position and formulate plans or proposals with respect thereto, but has no
present intention of doing so.
Item 5. Interest in Securities of the Issuer.
(a) As of August 2, 2007, Millenco was the beneficial owner of 1,200,000
shares of Common Stock which represented 10.3% of the outstanding shares of
Common Stock. As of the date hereof, each of the Reporting Persons may be deemed
to be the beneficial owner of an aggregate of 1,205,894 shares of Common Stock,
consisting of (1) 984,500 shares of common stock owned by Millenco, (2) warrants
to purchase 457,610 shares of Common Stock owned by Millenco of which
approximately 16,000 are currently exercisable (as discussed below) and (3) up
to 205,394 shares of Common Stock issuable to Riverview pursuant to an
Assignment Agreement attached hereto as Exhibit 5 (the "Assignment Agreement"),
dated August 3, 2007, by and among Riverview and MPM Bioventures III-QP, L.P.,
MPM Bioventures III-Parallel Fund, L.P., MPM Bioventures III-GMBH & Co.
Beteiligungs KG, MPM Bioventures III, L.P., MPM Asset Management Investors 2004
BVII LLC, Healthcare Ventures VII, L.P, Bear Stearns Health Innoventures
Employee Fund, L.P., Bear Stearns Health Innoventures Offshore, L.P., Bear
Stearns Health Innoventures, L.P., BSHI Members, L.L.C., and BX, L.P. Pursuant
to a Letter Agreement dated August 2, 2007, between the Company and Millennium
Management (as amended), attached hereto as Exhibit 3 (the "Warrant Blocker
Agreement"), the warrants described in clause (2) above may not be exercised to
the extent that such exercise would result in the Reporting Persons beneficially
owning in excess of 4.99% of the then outstanding Common Stock of the Company.
Accordingly, 16,000 of the 457,610 warrants described in clause (2) are
exercisable. Pursuant to the Assignment Agreement the Reporting Persons may
actually receive fewer shares of Common Stock based upon the number of shares
voted in favor of the Merger Proposal. For purposes of the calculations included
in this statement, we have assumed the ownership by the Reporting Persons of the
maximum number of shares of Common Stock to which they may become entitled.
Based upon the foregoing, the Reporting Persons may be deemed to beneficially
own approximately 4.99% of the outstanding shares of Common Stock.
The calculation of the foregoing percentage is on the basis of
11,650,000 shares of Common Stock reported outstanding by the Company in its
Preliminary Proxy Statement on Schedule 14A, dated July 16, 2007 plus a minimum
of 12,500,000 shares of Common Stock issued in connection with the Merger as
reported by the Company in the Current Report on Form 8-K filed on August 9,
2007. The number of shares of Common Stock issued by the Company may exceed
12,500,000 based on the number of shares voted in favor of the Merger Proposal.
Millennium Management, as the manager of Millenco, may also be deemed to
beneficially own the above-described shares of Common Stock beneficially owned
by Millenco.
CUSIP No. 42224H104 13D Page 8 of 12 Pages
Mr. Englander, as the managing member of Millennium Management, may also be
deemed to beneficially own the above-described shares of Common Stock
beneficially owned by Millenco.
The foregoing should not be construed in and of itself as an admission by
Millennium Management or Mr. Englander as to beneficial ownership of the shares
held by Millenco.
Accordingly, as of the date of this filing, Mr. Englander and Millennium
Management may be deemed to be beneficial owners of 1,205,894 shares of Common
Stock.
(b) Millenco may be deemed to hold shared power to vote and to dispose of the
1,205,894 shares of Common Stock described in (a) above. Mr. Englander and
Millennium Management may be deemed to hold shared power to vote and to dispose
of the 1,205,894 shares of Common Stock described in (a) above. The foregoing
should not be construed in and of itself as an admission by Mr. Englander or
Millennium Management as to beneficial ownership of the shares held by Millenco.
(c) Transactions in Common Stock during the past 60 days: Schedule A annexed
hereto lists all transactions in the Common Stock during the past 60 days by the
Reporting Persons. All transactions in the Common Stock were effected by
Millenco in the open market.
(d) No person other than the Reporting Persons is known to have the right to
receive, or the power to direct the receipt of, dividends from, or proceeds from
the sale of, the shares of Common Stock reported in this Statement.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
In addition to the Common Stock, the Reporting Persons may also be
deemed to beneficially own warrants to purchase shares of Common Stock.
Pursuant to the Warrant Blocker Agreement, the 457,610 warrants subject to the
Warrant Blocker Agreement as of the date hereof may not be exercised to the
extent that such exercise would result in the Reporting Persons beneficially
owning in excess of 4.99% of the then outstanding Common Stock of the Company.
Accordingly, approximately 16,000 of such warrants are currently exercisable.
Pursuant to a Purchase Option Agreement attached hereto as Exhibit 4,
dated August 3, 2007, by and among John Pappajohn ("JP"), Derace L. Schaffer
("DLS"), Matthew P. Kinley (together with his heirs, successors, or assigns, as
applicable "MPK", Edward B. Berger ("EBB") and Wayne A. Schellhammer ("WAS")
together with JP, DLS, MPK, and EBB, collectively referred to as the "Sellers")
and Riverview, an affiliate of the Reporting Persons, Riverview acquired an
option to purchase 542,894 shares of Common Stock of the Company from the
Sellers at a price of $0.0001 per share. The term of the option begins on the
date that Common Stock placed in escrow by the Sellers in connection with the
initial public offering of the Company is released to them and expires one year
thereafter. This option may not be exercised to the extent that such exercise
would result in the Reporting Persons and Riverview beneficially owning in
excess of 4.99% of the then outstanding Common Stock of the Company.
CUSIP No. 42224H104 13D Page 9 of 12 Pages
Pursuant to the Assignment Agreement, in connection with the Merger,
the Reporting Persons were assigned up to 205,394 shares of Common Stock,
depending on the number of shares voted in favor of the Merger Proposal. The
shares so assigned are subject to a one year lock-up pursuant to a Letter
Agreement attached hereto as Exhibit 6, dated August 2, 2007, between the
Company and Riverview.
Pursuant to a Letter Agreement attached hereto as Exhibit 7, dated
August 2, 2007, between the Company and Riverview, the Reporting Persons have
been granted registration rights with respect to the shares of Common Stock
owned by them.
Other than as set forth above and the Joint Acquisition Statement
attached as Exhibit 1 hereto, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) among the persons named in
Item 2 hereof and between such persons and any person with respect to any
securities of the Company, including but not limited to transfer or voting of
any other securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, divisions of profits or
loss, or the giving or withholding of proxies.
Item 7. Materials to be Filed as Exhibits.
Exhibit 1: Joint Acquisition Statement as required by Rule 13d-1(k)(1)
under the Securities Exchange Act of 1934, as amended.
Exhibit 2: Form of Warrant to Purchase Common Stock (incorporated
herein by reference to Exhibit 4.3 of the Registration Statement on Form S-1
filed by the Company on May 6, 2005)
Exhibit 3: Letter Agreement dated August 2, 2007, between the Company
and Millennium Management
Exhibit 4: Purchase Option Agreement, dated August 3, 2007, by and
among John Pappajohn, Derace L. Schaffer, Matthew P. Kinley, Edward B. Berger
and Wayne A. Schellhammer and Riverview Group LLC
Exhibit 5: Assignment Agreement, dated August 3, 2007, by and among
Riverview Group LLC and MPM Bioventures III-QP, L.P., MPM Bioventures
III-Parallel Fund, L.P., MPM Bioventures III-GMBH & Co. Beteiligungs KG, MPM
Bioventures III, L.P., MPM Asset Management Investors 2004 BVII LLC, Healthcare
Ventures VII, L.P, Bear Stearns Health Innoventures Employee Fund, L.P., Bear
Stearns Health Innoventures Offshore, L.P., Bear Stearns Health Innoventures,
L.P., BSHI Members, L.L.C., and BX, L.P.
Exhibit 6: Letter Agreement, dated August 2, 2007, between the Company
and Riverview Group, LLC
Exhibit 7: Letter Agreement, dated August 2, 2007, between the Company
and Riverview Group, LLC
CUSIP No. 42224H104 13D Page 10 of 12 Pages
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
DATED: August 10, 2007
MILLENCO, L.L.C.
By: /S/ MARK MESKIN
------------------------------
Name: Mark Meskin
Title: Chief Executive Officer
MILLENNIUM MANAGEMENT, L.L.C.
By: /S/ DAVID NOLAN
-----------------------------
Name: David Nolan
Title: Co-President
Israel A. Englander
by David Nolan pursuant to Power of
Attorney filed with the SEC on June 6, 2005
/S/ DAVID NOLAN
---------------
CUSIP No. 42224H104 13D Page 11 of 12 Pages
Schedule A
DATE TRANSACTION TYPE NUMBER OF SHARES PRICE PER SHARE
- ---- ---------------- ---------------- ---------------
8/1/07 Sale 106,500 $7.64
8/3/07 Purchase 1,200,000 $7.75
8/3/07 Sale 5,900 $6.39
8/3/07 Sale 5,000 $6.20
8/3/07 Sale 9,900 $6.28
8/3/07 Sale 2,700 $6.15
8/3/07 Sale 7,500 $6.20
8/3/07 Sale 13,700 $6.10
8/3/07 Sale 70,000 $6.05
8/3/07 Sale 50,000 $6.10
8/3/07 Sale 42,000 $6.10
8/3/07 Sale 2,500 $6.15
8/3/07 Sale 6,300 $6.18
CUSIP No. 42224H104 13D Page 12 of 12 Pages
EXHIBIT 1
JOINT ACQUISITION STATEMENT
PURSUANT TO RULE 13D-1(k)1
The undersigned acknowledge and agree that the foregoing statement on Schedule
13D is filed on behalf of each of the undersigned and that all subsequent
amendments to this statement on Schedule 13D shall be filed on behalf of each of
the undersigned without the necessity of filing additional joint acquisition
statements. The undersigned acknowledge that each shall be responsible for the
timely filing of such amendments and for the completeness and accuracy of the
information concerning him or it contained therein, but shall not be responsible
for the completeness and accuracy of the information concerning the others,
except to the extent that he or it knows or has reason to believe that such
information is inaccurate.
Dated: August 10, 2007
MILLENCO, L.L.C.
By: /S/ MARK MESKIN
---------------------------
Name: Mark Meskin
Title: Chief Executive Officer
MILLENNIUM MANAGEMENT, L.L.C.
By: /S/ DAVID NOLAN
---------------------------
Name: David Nolan
Title: Co-President
Israel A. Englander
by David Nolan pursuant to Power of
Attorney filed with the SEC on June 6, 2005
/S/ DAVID NOLAN
---------------
HEALTHCARE ACQUISITION CORP.
2116 FINANCIAL CENTER, 666 WALNUT STREET
DES MOINES, IOWA
August 2, 2007
To: Millennium Management, LLC (referred to herein as "MILLENNIUM").
Reference is made to those certain warrants to purchase up to 6,900,000
shares of common stock of Healthcare Acquisition Corp. (the "COMPANY"), par
value $0.0001 per share, (the "COMMON STOCK") issued to public investors in
connection with the Company's initial public offering (the "PUBLIC WARRANTS").
Notwithstanding anything to the contrary contained in the Public
Warrants and any other warrant to purchase Common Stock of the Company held by
Millennium or any investment fund of Millennium, including, without limitation,
Riverview Group, LLC and Millenco, LLC, (any such warrants together with the
Public Warrants, the "WARRANTS") and the holder of any Warrants referred to
herein as the "HOLDER"), the Company and the Millennium hereby agree as follows:
1. BENEFICIAL OWNERSHIP. The Company shall not effect any exercise of
any Warrant, and the Holder shall have no right to exercise any portion of any
Warrant, to the extent that after giving effect to such exercise, the Holder
(together with the Holder's affiliates) would beneficially own in excess of
9.99% of the number of shares of Common Stock outstanding immediately after
giving effect to such exercise (the "EXERCISE LIMITATION"). For purposes of the
foregoing sentence, the number of shares of Common Stock beneficially owned by
the Holder and its affiliates shall include the number of shares of Common Stock
issuable upon exercise of the Warrants(s) then being exercised, but shall
exclude the number of shares of Common Stock which would be issuable upon (A)
exercise of the remaining, nonconverted portion of any Warrants beneficially
owned by the Holder or any of its affiliates and (B) exercise or conversion of
the unexercised or nonconverted portion of any other securities of the Company
subject to a limitation on conversion or exercise analogous to the limitation
contained herein beneficially owned by the Holder or any of its affiliates.
Except as set forth in the preceding sentence, for purposes hereof, beneficial
ownership shall be calculated in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended. For purposes hereof, in determining the number
of outstanding shares of Common Stock, the Holder may rely on the number of
outstanding shares of Common Stock as reflected in (x) the Company's most recent
Form 10-K, Form 10-Q or Form 8-K, as the case may be, (y) a more recent public
announcement by the Company or (z) any other notice by the Company (which shall
be provided upon request) setting forth the number of shares of Common Stock
outstanding. For any reason, and at any time, upon the written or oral request
of the Holder, the Company shall within one (1) Business Day confirm orally and
in writing to the Holder the number of shares of Common Stock then outstanding.
In any case, the number of outstanding shares of Common Stock shall be
determined after
giving effect to the conversion or exercise of securities of the Company,
including any Note, by the Holder or its affiliates since the date as of which
such number of outstanding shares of Common Stock was reported. As used herein,
"BUSINESS DAY" means any day other than Saturday, Sunday or other day on which
commercial banks in the City of New York are authorized or required by law to
remain closed.
2. TERMINATION. By written notice to the Company, the Holder may
increase or decrease the Exercise Limitation to any other percentage not in
excess of 9.99% specified in such notice; PROVIDED, that (i) any increase will
not be effective until the 61st day after such notice is delivered to the
Company, and (ii) any such increase or decrease will apply only to the Holder
and not to any other holder of Warrants. The Company may not terminate this
letter agreement except with the written consent of the Millennium.
4. GOVERNING LAW. This letter agreement shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of the State of New York, without
regard to the conflict of laws provisions thereof.
5. EXECUTION IN COUNTERPARTS. This letter agreement may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Sincerely,
HEALTHCARE ACQUISITION CORP.
By: /s/ Matthew Kinley
------------------------------
Name: Matthew Kinley
Title: President
Agreed and accepted as of August 3, 2007:
MILLENNIUM MANAGEMENT, LLC
By: /s/ Terry Feeney
------------------------------
Name: Terry Feeney
Title: Co-President
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be executed by its officers thereto duly authorized on
the date first above written.
MPM BIOVENTURES III, L.P.
By: MPM BioVentures III GP, L.P., its General Partner
By: MPM BioVentures III LLC, its General Partner
By: /s/ Ansbert Gadicke
--------------------------------------------------
Name: Ansbert Gadicke
Title: Series A Member
MPM BIOVENTURES III-QP, L.P.
By: MPM BioVentures III GP, L.P., its General Partner
By: MPM BioVentures III LLC, its General Partner
By: /s/ Ansbert Gadicke
--------------------------------------------------
Name: Ansbert Gadicke
Title: Series A Member
MPM BIOVENTURES III PARALLEL FUND, L.P.
By: MPM BioVentures III GP, L.P., its General Partner
By: MPM BioVentures III LLC, its General Partner
By: /s/ Ansbert Gadicke
--------------------------------------------------
Name: Ansbert Gadicke
Title: Series A Member
MPM BIOVENTURES III GMBH & CO. BETEILIGUNGS KG
By: MPM BioVentures III GP, L.P., in its capacity as
the Managing Limited Partner
By: MPM BioVentures III LLC, its General Partner
By: /s/ Ansbert Gadicke
--------------------------------------------------
Name: Ansbert Gadicke
Title: Series A Member
MPM ASSET MANAGEMENT INVESTORS
2004 BVIII LLC
By: /s/ Ansbert Gadicke
--------------------------------------------------
Name: Ansbert Gadicke
Title: Manager
HEALTHCARE VENTURES VII, L.P.
By: HealthCare Partners VII, L.P.
By: /s/ Jeffrey Steinberg
--------------------------------------------------
Name: Administrative Partner of HealthCare
Partners VII, L.P.
Title: The General Partner of HealthCare Ventures
VII, L.P.
BEAR STEARNS HEALTH INNOVENTURES, L.P.
By: Bear Stearns Health Innoventures
Management, LLC, its General Partner
By: /s/ Stefan Ryser
--------------------------------------------------
Name: Stefan Ryser
Title: Managing Partner
BEAR STEARNS HEALTH INNOVENTURES OFFSHORE, L.P.
By: Bear Stearns Health Innoventures
Management, LLC, its General Partner
By: /s/ Stefan Ryser
--------------------------------------------------
Name: Stefan Ryser
Title: Managing Partner
BSHI MEMBERS, L.L.C.
By: Bear Stearns Asset Management Inc., its Manager
By: /s/ Stefan Ryser
--------------------------------------------------
Name: Stefan Ryser
Title: Authorized Signatory
BEAR STEARNS HEALTH INNOVENTURES EMPLOYEE FUND, L.P.
By: Bear Stearns Health Innoventures
Management, LLC, its General Partner
By: /s/ Stefan Ryser
--------------------------------------------------
Name: Stefan Ryser
Title: Managing Partner
BX, L.P.
By: Bear Stearns Health Innoventures
Management, LLC, its General Partner
By: /s/ Stefan Ryser
--------------------------------------------------
Name: Stefan Ryser
Title: Managing Partner
PURCHASE OPTION AGREEMENT
This PURCHASE OPTION AGREEMENT (this "AGREEMENT") is made as
of August 3, 2007, by and among John Pappajohn ("JP"), Derace L. Schaffer
("DLS"), Matthew P. Kinley (together with his heirs, successors, or assigns, as
applicable "MPK", Edward B. Berger ("EBB") and Wayne A. Schellhammer ("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
1
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
2
later than five (5) business days after the date of the delivery of such notice.
On the Closing Date, at the offices of McCarter & English, 245 Park Avenue, 27th
Floor, New York, NY, 10167-0001, 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.
3
(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
4
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
5
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
6
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
7
electronic transmission shall be effective as delivery of a manually signed
counterpart of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
8
IN WITNESS WHEREOF, this Agreement has been executed as of the
date first set forth above.
John Pappajohn /S/ JOHN PAPPAJOHN
------------------
Address:
----------------------------------------------------------
Matthew P. Kinley /S/ MATTHEW P. KINLEY
---------------------
Address:
----------------------------------------------------------
Derace L. Schaffer /S/ DERACE L. SCHAEFFER
-----------------------
Address:
----------------------------------------------------------
Edward B. Berger /S/ EDWARD B. BERGER
--------------------
Address:
----------------------------------------------------------
Wayne A. Schellhammer /S/ WAYNE A. SCHELLHAMMER
-------------------------
Address:
----------------------------------------------------------
Buyer: Riverview Group LLC
By: Integrated Holdings Group LP
-------------------------------------
Manager
By: /s/ Terry Feeney
-------------------------------------
Name: Terry Feeney
Title: Co-President
9
SCHEDULE A
Seller Maximum Number of Shares
John Pappajohn 213,249
Derace L. Shaffer 213,249
Matthew Kinley 106,624
Edward B. Berger 4,886
Wayne A. Schellhammer 4,886
10
SCHEDULE B
Seller Number of Shares Beneficially Owned
John Pappajohn 982,000
Derace L. Shaffer 982,000
Matthew Kinley 491,000
Edward B. Berger 22,500
Wayne A. Schellhammer 22,500
Seller
John Pappajohn
Derace L. Shaffer
Matthew Kinley
Edward B. Berger
Wayne A. Schellhammer
11
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT (this "Agreement") is made as of August 3,
2007, by and among Riverview Group LLC (the "Assignee") and MPM Bioventures
III-QP, L.P., MPM Bioventures III-Parallel Fund, L.P., MPM Bioventures III-GMBH
& Co. Beteiligungs KG, MPM Bioventures III, L.P., MPM Asset Management Investors
2004 BVII LLC, Healthcare Ventures VII, L.P, Bear Stearns Health Innoventures
Employee Fund, L.P., Bear Stearns Health Innoventures Offshore, L.P., Bear
Stearns Health Innoventures, L.P., BSHI Members, L.L.C., and BX, L.P.
(collectively, the "Assignors").
WHEREAS, each of the Assignors is a current stockholder of PharmAthene,
Inc., a Delaware corporation ("PharmAthene"); and
WHEREAS, PharmAthene is a party to an Agreement and Plan of Merger,
dated as of January 19, 2007 (the "Merger Agreement"), with Healthcare
Acquisition Corp., a Delaware corporation ("HAQ"), and its 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")
into and with PharmAthene as a result of which, among other things, PharmAthene
shall become a wholly-owned subsidiary of HAQ and the shares of capital stock of
PharmAthene outstanding immediately prior to the effective time of the Merger
shall be canceled and converted into the right to receive, among other things,
shares of common stock of HAQ, $.0001 par value per share, in the aggregate
amount of 12,500,000 (the "Stock Consideration"); and
WHEREAS, consummation of the Merger is subject to, among other things,
(1) the approval of the Merger Proposal set forth in HAQ's definitive proxy
statement (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 Merger Agreement provides, among other things, that in the
event that the stockholders of HAQ owning more than 5% of the outstanding common
stock of HAQ exercise their Conversion Right, the number of shares of common
stock of HAQ comprising the Stock Consideration shall be adjusted upwards by the
product of (x) the number (as a percentage) that is the difference between the
percentage of common stock of HAQ that is converted and 5% and (y) 2.25 million
(such shares, as calculated, the "Adjustment Shares"); and
WHEREAS, as current stockholders of PharmAthene, each of the Assignors
shall be entitled to its pro-rata portion of the Adjustment Shares should the
Merger be consummated and such shares be issuable pursuant to the terms of the
Merger Agreement; and
WHEREAS, the Assignee 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; and
WHEREAS, the parties desire that the Merger be approved and consummated
and anticipate that up to 2.8 million Opposing HAQ Shares may be purchased by
new investors (the "New Investors") such as Assignee in private transactions;
and
WHEREAS, each Assignor, contingent upon the Assignee's acquisition of
the Opposing HAQ Shares and such shares being voted in favor of the Merger
Proposal and all of the other proposals contained in the HAQ Proxy, acting
individually and not as a group, desires to assign (x) its respective rights to
any Adjustment Shares to which each of them may become entitled as a consequence
of the consummation of the Merger and the exercise of Conversion Rights by
stockholders of HAQ owning more than 5% of the outstanding common stock of HAQ
and (y) its respective rights to receive a number of shares of HAQ common stock
equal to 114,624 shares (the "Closing Shares"), and the Assignee desires to
accept such assignment;
NOW, THEREFORE, in consideration of one hundred dollars ($100.00) and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. The parties acknowledge and agree that the recitals set forth above
are true and accurate and are a part of this Agreement as if more fully set
forth herein.
2. Contingent upon the Assignee's acquisition of the Opposing HAQ
Shares and such shares being voted in favor of the Merger Proposal and all of
the other proposals contained in the HAQ Proxy, each of the Assignors, acting
individually and not as a group, hereby assigns, transfers and conveys to the
Assignee the rights, benefits and privileges of the Assignor to 42.85715% of any
Adjustment Shares (resulting in a possible maximum of 90,770 shares) and to the
Closing Shares to be issued to it under the Merger Agreement. Notwithstanding
the foregoing, in the event that fewer than 2.8 million Opposing HAQ Shares are
purchased by New Investors, the number of Closing Shares and Adjustment Shares,
if any, to be assigned to Assignee hereunder shall be adjusted ratably based
upon the actual number of Opposing HAQ Shares that are purchased by New
Investors in the aggregate.
3. In consideration of the foregoing, the Assignee hereby accepts the
foregoing assignment and acknowledges that such assignment shall only become
effective in the event that (a) prior to the Special Meeting of Stockholders of
HAQ, the Assignee consummates the purchase(s) of the Opposing HAQ Shares and
obtains or designates the voting rights of such stockholders for the proposals
being voted upon at the Special Meeting, (b) the Opposing HAQ Shares are voted
in favor of the Merger Proposal and of the other proposals contained in the HAQ
Proxy, (c) the Merger is consummated, (d) in the case of the Adjustment Shares,
the Adjustment Shares become issuable pursuant to the terms of the Merger
Agreement and (e) the Assignee executes a lock-up agreement in the form of
Exhibit A attached hereto.
4. This Agreement and all of its terms shall inure to the benefit of
and shall bind the Assignors and the Assignee and their respective successors
and assigns. None of the Assignors may assign its respective rights or
obligations hereunder without the prior written consent of the Assignee.
Assignee shall have the right to substitute any one of its affiliates as the
assignee hereunder by written notice to the HAQ on behalf of the Assignors which
notice shall be signed by both the Assignee and such affiliate, shall contain
such affiliate's agreement to be bound by this Agreement and to executed the
lock up agreement in the form of Exhibit A attached hereto. Upon receipt of such
notice, any reference to Assignee in this Agreement (other than in this Section
4) shall be deemed to refer to such affiliate in lieu of Assignor.
5. This Agreement shall be governed by and interpreted under the laws
of the State of New York applicable to contracts made and to be performed
therein without giving effect to the principles of conflicts of laws thereof.
6. This Agreement may be executed in counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by its officers thereunto duly authorized on the date
first above written.
MPM BIOVENTURES III, L.P.
By: MPM BioVentures III GP, L.P., its General
Partner
By: MPM Bio Ventures III LLC, its General
Partner
By: /s/ Ansbert Gadicke
-------------------------------------------
Name: Ansbert Gadicke
Title: Series A Member
MPM BIOVENTURES III-QP, L.P.
By: MPM BioVentures III GP, L.P., its General
Partner
By: MPM Bio Ventures III LLC, its General
Partner
By: /s/ Ansbert Gadicke
-------------------------------------------
Name: Ansbert Gadicke
Title: Series A Member
MPM BIOVENTURES III PARALLEL FUND, L.P.
By: MPM BioVentures III GP, L.P., its General
Partner
By: MPM BioVentures III LLC, its General
Partner
By: /s/ Ansbert Gadicke
-------------------------------------------
Name: Ansbert Gadicke
Title: Series A Member
MPM BIOVENTURES III GMBH & CO. BETEILIGUNGS KG
By: MPM BioVentures III GP, L.P., in its
capacity as the Managing Limited Partner
By: MPM BioVentures III LLC, its General
Partner
By: /s/ Ansbert Gadicke
-------------------------------------------
Name: Ansbert Gadicke
Title: Series A Member
MPM ASSET MANAGEMENT INVESTORS 2004 BVIII LLC
By: /s/ Ansbert Gadicke
-------------------------------------------
Name: Ansbert Gadicke
Title: Manager
HEALTHCARE VENTURES VII, L.P.
By: HealthCare Partners VII, L.P.
By: /s/ [signature illegible]
-------------------------------------------
Name:
Title:
BEAR STEARNS HEALTH INNOVENTURES, L.P.
By: Bear Stearns Health Innoventures
Management, LLC, its General Partner
By: /s/ Stefan Ryser
--------------------------------------------
Name: Stefan Ryser
Title: Managing Partner
BEAR STEARNS HEALTH INNOVENTURES OFFSHORE, L.P.
By: Bear Stearns Health Innoventures
Management, LLC, its General Partner
By: /s/ Stefan Ryser
--------------------------------------------
Name: Stefan Ryser
Title: Managing Partner
BSHI MEMBERS, L.L.C.
By: Bear Stearns Health Innoventures
Management, LLC, its Managing Member
By: /s/ Stefan Ryser
--------------------------------------------
Name: Stefan Ryser
Title: Authorized Signatory
BEAR STEARNS HEALTH INNOVENTURES
EMPLOYEE FUND, L.P.
By: Bear Stearns Health Innoventures
Management, LLC, its General Partner
By: /s/ Stefan Ryser
--------------------------------------------
Name: Stefan Ryser
Title: Managing Partner
BX, L.P.
By: Bear Stearns Health Innoventures
Management, LLC, its General Partner
By: /s/ Stefan Ryser
--------------------------------------------
Name: Stefan Ryser
Title: Managing Partner
RIVERVIEW GROUP LLC
By: /s/ Terry Feeney
--------------------------------------------
Name: Terry Feeney
Title: Co-President
EXHIBIT A
___________, 2007
Healthcare Acquisition Corporation
2116 Financial Center
666 Walnut Street
Des Moines, Iowa 50309
Re: HEALTHCARE ACQUISITION CORP./PHARMATHENE, INC. MERGER
Ladies and Gentlemen:
This letter agreement (this "Agreement") relates to the proposed merger
(the "Merger") of PAI Acquisition Corp. (the "Merger Sub"), a Delaware
corporation and a wholly-owned subsidiary of Healthcare Acquisition Corporation
(the "Parent"), a Delaware corporation, with PharmAthene, Inc. (the "Company"),
a Delaware corporation. The Merger is governed by the certain Agreement and Plan
of Merger, dated as of January 19, 2007, by and among Parent, Merger Sub and the
Company (the "Merger Agreement") and capitalized terms not otherwise defined
herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent and Merger Sub to consummate the Merger, the
undersigned hereby agrees that, as of the date hereof until expiration of the
Lock-Up Period (as defined below), the undersigned: (a) will not, directly or
indirectly, offer, sell, agree to offer or sell, solicit offers to purchase,
grant any call option or purchase any put option with respect to, pledge, borrow
or otherwise dispose of any Relevant Security (as defined below) and (b) will
not establish or increase any "put equivalent position" or liquidate or decrease
any "call equivalent position" with respect to any Relevant Security (in each
case within the meaning of Section 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder) or otherwise
enter into any swap, derivative or other transaction or arrangement that
transfers to another, in whole or in part, any economic consequence of ownership
of a Relevant Security, whether or not such transaction is to be settled by
delivery of Relevant Securities, other securities, cash or other consideration,
except in accordance with the following schedule: fifty percent (50%) of the
Relevant Securities shall be released from this Agreement on the date that is
six (6) months from the Closing Date and the remaining fifty percent (50%) of
the Relevant Securities shall be released from this Agreement on the date that
is twelve (12) months from the Closing Date (the "Lock-Up Period"). As used
herein, "Relevant Security" means any common stock or 8% promissory notes of the
Parent (or common stock issuable upon conversion of such notes or as a dividend
thereon) received by or issuable to the undersigned pursuant to the Merger
Agreement but shall not include any securities obtained by any other means.
The undersigned hereby authorizes Parent during the Lock-Up Period to
cause any transfer agent for the Relevant Securities to decline to transfer and
to note stop transfer restrictions on the stock register and other records
relating to Relevant Securities for which the undersigned is the record holder
and, in the case of Relevant Securities for which the undersigned is the
beneficial but not record holder, agrees during the Lock-Up Period to cause the
record holder to authorize the Parent to cause any transfer agent for the
Relevant Securities to decline to transfer and to note stop transfer
restrictions on the stock register and other records relating to such Relevant
Securities in accordance with this Agreement.
The restrictions set forth in the immediately preceding paragraph shall
not apply to:
(1) if the undersigned is a natural person, any transfers made by the
undersigned (a) as a bona fide gift to any member of the immediate family (as
defined below) of the undersigned or to a trust the direct or indirect
beneficiaries of which are exclusively the undersigned or members of the
undersigned's immediate family, (b) by will or intestate succession upon the
death of the undersigned or (c) as a bona fide gift to a charity or educational
institution,
(2) if the undersigned is a corporation, partnership, limited liability
company or other business entity, any transfers to any shareholder, partner or
member of, or owner of a similar equity interest in, the undersigned, as the
case may be, if, in any such case, such transfer is not for value, and
(3) if the undersigned is a corporation, partnership, limited liability
company or other business entity, any transfer made by the undersigned (a) in
connection with the sale or other bona fide transfer in a single transaction of
all or substantially all of the undersigned's capital stock, partnership
interests, membership interests or other similar equity interests, as the case
may be, or all or substantially all of the undersigned's assets, in any such
case not undertaken for the purpose of avoiding the restrictions imposed by this
agreement or (b) to another corporation, partnership, limited liability company
or other business entity so long as the transferee is an affiliate (as defined
below) of the undersigned and such transfer is not for value;
provided, however, that in the case of any transfer described in clause (1), (2)
or (3) above, it shall be a condition to the transfer that (A) the transferee
executes and delivers to the Parent, not later than one business day prior to
such transfer, a written agreement, in substantially the form of this agreement
(it being understood that any references to "immediate family" in the agreement
executed by such transferee shall expressly refer only to the immediate family
of the undersigned and not to the immediate family of the transferee), and
otherwise reasonably satisfactory in form and substance to Parent, and (B) if
the undersigned is required to file a report under Section 16(a) of the
Securities Exchange Act of 1934, as amended, reporting a reduction in beneficial
ownership of the Relevant Securities or any securities convertible into or
exercisable or exchangeable for the Relevant Securities during the Lock-Up
Period, the undersigned shall include a statement in such report to the effect
that, in the case of any transfer pursuant to clause (1) above, such transfer is
being made as a gift or by will or intestate succession or, in the case of any
transfer pursuant to clause (2) above, such transfer is being made to a
shareholder, partner or member of, or owner of a similar equity interest in, the
undersigned and is not a transfer for value or, in the case of any transfer
pursuant to clause (3) above, such transfer is being made either (a) in
connection with the sale or other bona fide transfer in a single transaction of
all or
substantially all of the undersigned's capital stock, partnership interests,
membership interests or other similar equity interests, as the case may be, or
all or substantially all of the undersigned's assets or (b) to another
corporation, partnership, limited liability company or other business entity
that is an affiliate of the undersigned and such transfer is not for value. For
purposes of this paragraph, "immediate family" shall mean a spouse, child,
grandchild or other lineal descendant (including by adoption), father, mother,
brother or sister of the undersigned; and "affiliate" shall have the meaning set
forth in Rule 405 under the Securities Act of 1933, as amended.
The undersigned shall not be subject to any of the foregoing restrictions in
this Agreement unless and until all officers, directors and 1% or greater
securityholders of PharmAthene, Inc. calculated on a fully diluted basis
immediately prior to the Offering ("1% or Greater Securityholders"), have
executed similar agreements. In the event that the undersigned is released early
by Parent pursuant to the terms of the this paragraph, the Parent shall notify
the undersigned concurrently with notification to such other released party.
In the event a certain percentage of the securities held by the officers,
directors and/or 1% or Greater Securityholders of the Company are released from
the restrictions set forth in agreements similar to this Agreement, the same
percentage of the securities held by the undersigned shall be immediately and
fully released from any remaining restrictions under this Agreement concurrently
therewith. In the event that the undersigned is released early pursuant to the
terms of the this paragraph, the Parent shall notify the undersigned
concurrently with notification to such other released party.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to enter into this Agreement and that this Agreement
constitutes the legal, valid and binding obligation of the undersigned,
enforceable in accordance with its terms. Upon request, the undersigned will
execute any additional documents necessary in connection with enforcement
hereof. Any obligations of the undersigned shall be binding upon the successors
and assigns of the undersigned from the date first written above.
[Remainder of Page Intentionally Blank]
This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to the conflicts of laws principles
thereof. Delivery of a signed copy of this letter by facsimile transmission
shall be effective as delivery of the original hereof.
Very truly yours,
RIVERVIEW GROUP LLC
By:
--------------------------------------------
Name:
Title:
August 2, 2007
Healthcare Acquisition Corporation
2116 Financial Center
666 Walnut Street
Des Moines, Iowa 50309
Re: HEALTHCARE ACQUISITION CORP./PHARMATHENE, INC. MERGER
Ladies and Gentlemen:
This letter agreement (this "Agreement") relates to the proposed merger
(the "Merger") of PAI Acquisition Corp. (the "Merger Sub"), a Delaware
corporation and a wholly-owned subsidiary of Healthcare Acquisition Corporation
(the "Parent"), a Delaware corporation, with PharmAthene, Inc. (the "Company"),
a Delaware corporation. The Merger is governed by the certain Agreement and Plan
of Merger, dated as of January 19, 2007, by and among Parent, Merger Sub and the
Company (the "Merger Agreement") and capitalized terms not otherwise defined
herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent and Merger Sub to consummate the Merger, the
undersigned hereby agrees that, as of the date hereof until expiration of the
Lock-Up Period (as defined below), the undersigned: (a) will not, directly or
indirectly, offer, sell, agree to offer or sell, solicit offers to purchase,
grant any call option or purchase any put option with respect to, pledge, borrow
or otherwise dispose of any Relevant Security (as defined below) and (b) will
not establish or increase any "put equivalent position" or liquidate or decrease
any "call equivalent position" with respect to any Relevant Security (in each
case within the meaning of Section 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder) or otherwise
enter into any swap, derivative or other transaction or arrangement that
transfers to another, in whole or in part, any economic consequence of ownership
of a Relevant Security, whether or not such transaction is to be settled by
delivery of Relevant Securities, other securities, cash or other consideration,
except in accordance with the following schedule: fifty percent (50%) of the
Relevant Securities shall be released from this Agreement on the date that is
six (6) months from the Closing Date and the remaining fifty percent (50%) of
the Relevant Securities shall be released from this Agreement on the date that
is twelve (12) months from the Closing Date (the "Lock-Up Period"). As used
herein, "Relevant Security" means any common stock or 8% promissory notes of the
Parent (or common stock issuable upon conversion of such notes or as a dividend
thereon) received by or issuable to the undersigned pursuant to the Merger
Agreement but shall not include any securities obtained by any other means.
The undersigned hereby authorizes Parent during the Lock-Up Period to
cause any transfer agent for the Relevant Securities to decline to transfer and
to note stop transfer restrictions on the stock register and other records
relating to Relevant Securities for which the
undersigned is the record holder and, in the case of Relevant Securities for
which the undersigned is the beneficial but not record holder, agrees during the
Lock-Up Period to cause the record holder to authorize the Parent to cause any
transfer agent for the Relevant Securities to decline to transfer and to note
stop transfer restrictions on the stock register and other records relating to
such Relevant Securities in accordance with this Agreement.
The restrictions set forth in the immediately preceding paragraph shall
not apply to:
(1) if the undersigned is a natural person, any transfers made by the
undersigned (a) as a bona fide gift to any member of the immediate family (as
defined below) of the undersigned or to a trust the direct or indirect
beneficiaries of which are exclusively the undersigned or members of the
undersigned's immediate family, (b) by will or intestate succession upon the
death of the undersigned or (c) as a bona fide gift to a charity or educational
institution,
(2) if the undersigned is a corporation, partnership, limited liability
company or other business entity, any transfers to any shareholder, partner or
member of, or owner of a similar equity interest in, the undersigned, as the
case may be, if, in any such case, such transfer is not for value, and
(3) if the undersigned is a corporation, partnership, limited liability
company or other business entity, any transfer made by the undersigned (a) in
connection with the sale or other bona fide transfer in a single transaction of
all or substantially all of the undersigned's capital stock, partnership
interests, membership interests or other similar equity interests, as the case
may be, or all or substantially all of the undersigned's assets, in any such
case not undertaken for the purpose of avoiding the restrictions imposed by this
agreement or (b) to another corporation, partnership, limited liability company
or other business entity so long as the transferee is an affiliate (as defined
below) of the undersigned and such transfer is not for value;
provided, however, that in the case of any transfer described in clause (1), (2)
or (3) above, it shall be a condition to the transfer that (A) the transferee
executes and delivers to the Parent, not later than one business day prior to
such transfer, a written agreement, in substantially the form of this agreement
(it being understood that any references to "immediate family" in the agreement
executed by such transferee shall expressly refer only to the immediate family
of the undersigned and not to the immediate family of the transferee), and
otherwise reasonably satisfactory in form and substance to Parent, and (B) if
the undersigned is required to file a report under Section 16(a) of the
Securities Exchange Act of 1934, as amended, reporting a reduction in beneficial
ownership of the Relevant Securities or any securities convertible into or
exercisable or exchangeable for the Relevant Securities during the Lock-Up
Period, the undersigned shall include a statement in such report to the effect
that, in the case of any transfer pursuant to clause (1) above, such transfer is
being made as a gift or by will or intestate succession or, in the case of any
transfer pursuant to clause (2) above, such transfer is being made to a
shareholder, partner or member of, or owner of a similar equity interest in, the
undersigned and is not a transfer for value or, in the case of any transfer
pursuant to clause (3) above, such transfer is being made either (a) in
connection with the sale or other bona fide transfer in a single transaction of
all or substantially all of the undersigned's capital stock, partnership
interests, membership interests or other similar equity interests, as the case
may be, or all or substantially all of the undersigned's assets or (b) to
another corporation, partnership, limited liability company or other business
entity that is an affiliate of the undersigned and such transfer is not for
value. For purposes of this paragraph, "immediate family" shall mean a spouse,
child, grandchild or other lineal descendant (including by adoption), father,
mother, brother or sister of the undersigned; and "affiliate" shall have the
meaning set forth in Rule 405 under the Securities Act of 1933, as amended.
The undersigned shall not be subject to any of the foregoing restrictions in
this Agreement unless and until all officers, directors and 1% or greater
securityholders of PharmAthene, Inc. calculated on a fully diluted basis
immediately prior to the Offering ("1% or Greater Securityholders"), have
executed similar agreements. In the event that the undersigned is released early
by Parent pursuant to the terms of the this paragraph, the Parent shall notify
the undersigned concurrently with notification to such other released party.
In the event a certain percentage of the securities held by the officers,
directors and/or 1% or Greater Securityholders of the Company are released from
the restrictions set forth in agreements similar to this Agreement, the same
percentage of the securities held by the undersigned shall be immediately and
fully released from any remaining restrictions under this Agreement concurrently
therewith. In the event that the undersigned is released early pursuant to the
terms of the this paragraph, the Parent shall notify the undersigned
concurrently with notification to such other released party.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to enter into this Agreement and that this Agreement
constitutes the legal, valid and binding obligation of the undersigned,
enforceable in accordance with its terms. Upon request, the undersigned will
execute any additional documents necessary in connection with enforcement
hereof. Any obligations of the undersigned shall be binding upon the successors
and assigns of the undersigned from the date first written above.
[Remainder of Page Intentionally Blank]
This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to the conflicts of laws principles
thereof. Delivery of a signed copy of this letter by facsimile transmission
shall be effective as delivery of the original hereof.
Very truly yours,
RIVERVIEW GROUP LLC
By: /s/ Terry Feeney
--------------------------------
Name: Terry Feeney
Title: Co-President
HEALTHCARE ACQUISITIONS CORP.
2116 Financial Center
666 Walnut Street
Des Moines, Iowa 50309
August 2, 2007
Riverview Group LLC
Dear Sirs,
This letter shall serve to confirm the agreement of Healthcare
Acquisition Corp. ("HAQ") to provide to Riverview Group LLC registration rights
with regard to shares of the common stock of Healthcare Acquisition Corp.
acquired by Riverview Group from stockholders of PharmAthene, Inc.
("PharmAthene") in connection with the proposed merger of HAQ and PharmAthene
which rights shall be upon substantially the same terms as provided to the
stockholders of PharmAthene under the terms of the Agreement and Plan of Merger,
dated as of January 19, 2007, among PharmAthene, HAQ and HAQ's wholly-owned
subsidiary, PAI Acquisition Corp.
Very truly yours,
HEALTHCARE ACQUISITION CORP.
By: /s/ Matthew P. Kinley
--------------------------
Matthew P. Kinley
President