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 Xxxxxxx Health Innoventures
Employee Fund, L.P., Bear Xxxxxxx Health Innoventures Offshore, L.P., Bear
Xxxxxxx 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/ Xxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxx
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/ Xxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxx
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/ Xxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxx
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/ Xxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Series A Member
MPM ASSET MANAGEMENT INVESTORS 2004 BVIII LLC
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Manager
HEALTHCARE VENTURES VII, L.P.
By: HealthCare Partners VII, L.P.
By: /s/ [signature illegible]
-------------------------------------------
Name:
Title:
BEAR XXXXXXX HEALTH INNOVENTURES, L.P.
By: Bear Xxxxxxx Health Innoventures
Management, LLC, its General Partner
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Partner
BEAR XXXXXXX HEALTH INNOVENTURES OFFSHORE, L.P.
By: Bear Xxxxxxx Health Innoventures
Management, LLC, its General Partner
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Partner
BSHI MEMBERS, L.L.C.
By: Bear Xxxxxxx Health Innoventures
Management, LLC, its Managing Member
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
BEAR XXXXXXX HEALTH INNOVENTURES
EMPLOYEE FUND, L.P.
By: Bear Xxxxxxx Health Innoventures
Management, LLC, its General Partner
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Partner
BX, L.P.
By: Bear Xxxxxxx Health Innoventures
Management, LLC, its General Partner
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Partner
RIVERVIEW GROUP LLC
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: Co-President
EXHIBIT A
___________, 2007
Healthcare Acquisition Corporation
2116 Financial Center
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
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:
