AMENDMENT NO. 1
TO
UNDERWRITING AGREEMENT
This Amendment No. 1 (the "Amendment") to the Underwriting Agreement
(the "Agreement") dated July 28, 2005, is made as of March 20, 2006 by and
between HEALTHCARE ACQUISITION CORP. (the "Corporation") and MAXIM GROUP LLC, as
representative of the underwriters (the "Representative"). Any terms used herein
but not defined shall have the meaning set forth in the Agreement.
WHEREAS, the Corporation and the Representative desire to enter into
this Amendment to clarify the enforceability of certain provisions the
Corporation's amended and restated charter (the "Charter");
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. The following provisions (A) through (E) shall apply during the
period commencing from the filing of Charter and terminating upon the
consummation of any "Business Combination", and may not be amended prior to the
consummation of any Business Combination. A "Business Combination" shall mean
the acquisition by the Corporation, whether by merger, capital stock exchange,
asset or stock acquisition or other similar type of transaction, of assets or an
operating business in the healthcare industry ("Target Business").
A. Prior to the consummation of any Business Combination, the
Corporation shall submit such Business Combination to its stockholders for
approval regardless of whether the Business Combination is of a type which
normally would require such stockholder approval under the GCL. In the event
that a majority of the IPO Shares (defined below) cast at the meeting to approve
the Business Combination are voted for the approval of such Business
Combination, the Corporation shall be authorized to consummate the Business
Combination; provided that the Corporation shall not consummate any Business
Combination if 20% or more in interest of the holders of IPO Shares exercise
their conversion rights described in paragraph B below.
B. In the event that a Business Combination is approved in
accordance with the above paragraph A and is consummated by the Corporation, any
stockholder of the Corporation holding shares of Common Stock ("IPO Shares")
issued in the Corporation's initial public offering ("IPO") of securities who
voted against the Business Combination may, contemporaneous with such vote,
demand that the Corporation convert his IPO Shares into cash. If so demanded,
the Corporation shall convert such shares at a per share conversion price equal
to the quotient determined by dividing (i) the amount in the Trust Fund (as
defined below), inclusive of any interest thereon, calculated as of two business
days prior to the proposed consummation of the Business Combination, by (ii) the
total number of IPO Shares. "Trust Fund" shall mean the trust account
established by the Corporation at the consummation of its IPO and into which a
certain amount of the net proceeds of the IPO are deposited.
C. In the event that the Corporation does not consummate a Business
Combination by the later of (i) 18 months after the consummation of the IPO or
(ii) 24 months after the consummation of the IPO in the event that either a
letter of intent, an agreement in principle or a definitive agreement to
complete a Business Combination was executed but was not consummated within such
18 month period (such later date being referred to as the "Termination Date"),
the officers of the Corporation shall take all such action necessary to dissolve
and liquidate the Corporation as soon as reasonably practicable. In the event
that the Corporation is so dissolved and liquidated, only the holders of IPO
Shares (at such time) shall be entitled to receive liquidating distributions and
the Corporation shall pay no liquidating distributions with respect to any other
shares of capital stock of the Corporation.
D. A holder of IPO Shares shall be entitled to receive distributions
from the Trust Fund only in the event of a liquidation of the Corporation or in
the event he demands conversion of his shares in accordance with paragraph B,
above. In no other circumstances shall a holder of IPO Shares have any right or
interest of any kind in or to the Trust Fund.
E. The Board of Directors shall be divided into two classes: Class A
and Class B. The number of directors in each class shall be as nearly equal as
possible. Prior to the IPO, there shall be elected two Class A directors for a
term expiring at the Corporation's first Annual Meeting of Stockholders and
three Class B directors for a term expiring at the Corporation's second Annual
Meeting of Stockholders. Commencing at the first Annual Meeting of Stockholders,
and at each annual meeting thereafter, directors elected to succeed those
directors whose terms expire shall be elected for a term of office to expire at
the second succeeding annual meeting of stockholders after their election.
Except as the GCL may otherwise require, in the interim between annual meetings
of stockholders or special meetings of stockholders called for the election of
directors and/or the removal of one or more directors and the filling of any
vacancy in that connection, newly created directorships and any vacancies in the
Board of Directors, including unfilled vacancies resulting from the removal of
directors for cause, may be filled by the vote of a majority of the remaining
directors then in office, although less than a quorum (as defined in the
Corporation's Bylaws), or by the sole remaining director. All directors shall
hold office until the expiration of their respective terms of office and until
their successors shall have been elected and qualified. A director elected to
fill a vacancy resulting from the death, resignation or removal of a director
shall serve for the remainder of the full term of the director whose death,
resignation or removal shall have created such vacancy and until his successor
shall have been elected and qualified.
2. The Corporation acknowledges that the purchasers of the Firm
Units and the Option Units in the Offering shall be deemed to be third party
beneficiaries of this Amendment.
3. The Representative and the Corporation specifically agree that,
except pursuant to its own terms, this Amendment shall not be modified or
amended in any way.
4. Terms used herein but not defined herein shall have the
definitions set forth in the Agreement or the Charter, as applicable.
The Agreement shall otherwise remain in full force and effect.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment as
of the date first written above.
HEALTHCARE ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
MAXIM GROUP, LLC, as Representative
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Director of Investment Banking
