SUBSCRIPTION AGREEMENT
Exhibit
10.1
This Amended and Restated Subscription Agreement (this
“Agreement”) is dated as of September 10,
2008, among MBF Healthcare Acquisition Corp., a Delaware
corporation (the “Company”), and MBF Healthcare
Partners, L.P. (“Purchaser”).
ARTICLE I
“Action” means any action, suit, inquiry,
notice of violation, proceeding (including any partial
proceeding such as a deposition) or investigation pending or
threatened in writing against or affecting the Company or any of
its respective properties before or by any court, arbitrator,
governmental or administrative agency, regulatory authority
(federal, state, county, local or foreign), stock market, stock
exchange or trading facility.
“Affiliate” means any Person that, directly or
indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 144.
“Aggregate Investment Amount” means an amount
equal to (i) $20,400,000 plus (ii) Remainder
Amount plus (iii) one-half of the Initial Shortfall
Amount (if any) plus (iv) the Secondary Shortfall Amount
(if any) multiplied by five-twelfths (5/12).
“Business Day” means any day except Saturday,
Sunday and any day which shall be a federal legal holiday or a
day on which banking institutions in the State of New York are
authorized or required by law or other governmental action to
close.
“CHS” has the meaning ascribed to such term in
the definition of the CHS Transaction.
“CHS Transaction” means the purchase by the
Company of all of the issued and outstanding capital stock of
Critical Homecare Solutions Holdings, Inc., a Delaware
corporation (“CHS”), pursuant to a Stock
Purchase Agreement by and among the Company, CHS, Kohlberg
Investors V, L.P., a Delaware limited partnership, as
Sellers’ representative, and the Purchasers (as amended and
modified from time to time, the “Stock Purchase
Agreement”).
“Closing” means the closing of the purchase and
sale of the Shares pursuant to Section 2.1.
“Closing Date” means the date of the Closing,
which date shall be the same day upon which the closing of the
CHS Transaction occurs, following the satisfaction of each of
the conditions applicable to the Closing as set forth in
Section 2.2 hereof.
“Commission” means the Securities and Exchange
Commission.
“Common Stock” means the common stock of the
Company, $0.0001 par value per share.
1
“Disclosure Package” means (i) the
Prospectus and (ii) each “free writing
prospectus” as defined in Rule 405 promulgated under
the Securities Act.
“Exchange Act” means the Securities Exchange
Act of 1934, as amended.
“Filing Date” means, with respect to the
Registration Statement required to be filed hereunder
(i) the 30th calendar day following the Closing Date
with respect to the Shares and (ii) the 30th calendar
day following the issuance of any Share Amount Shares.
“Initial Shortfall Amount” means, if the funds
necessary to consummate the transactions contemplated by the
Stock Purchase Agreement as mutually determined by the
Sellers’ Representative and the Company is greater than
zero, the lesser of (i) $6,000,000 and (ii) the amount
of funds necessary to consummate the transactions contemplated
by the Stock Purchase Agreement as mutually determined by the
Sellers’ Representative and the Company.
“Lien” means any lien, charge, encumbrance,
security interest, right of first refusal, preemptive right or
other restrictions of any kind.
“Material Adverse Effect” means a material
adverse effect on the business, results of operations,
properties or assets of the Company; provided,
however, that “Material Adverse Effect”
shall not include the impact on such business, results of
operations, properties or assets arising out of or attributable
to (i) effects or conditions resulting from an outbreak or
escalation of hostilities, acts of terrorism, political
instability or other national or international calamity, crisis
or emergency, or any governmental or other response to any of
the foregoing, in each case whether or not involving the United
States (in each case, that do not disproportionately affect the
Company relative to other businesses in the industry in which
the Company operates), (ii) effects arising from changes in
laws or GAAP, (iii) effects relating to the announcement of
the execution of this Agreement or the transactions contemplated
hereby, or (iv) effects resulting from compliance with the
terms and conditions of this Agreement or the Stock Purchase
Agreement by the Company.
“Per Share Purchase Price” means the greater
of: (i) the average closing sales price of the Common Stock
for the ten consecutive Trading Days prior to the Closing Date
or (ii) the price at which a holder of Common Stock would
be entitled to have a single share of Common Stock converted,
assuming (a) such holder had voted against the CHS
Transaction and elected to have his shares of Common Stock
converted pursuant to the terms of the Company’s Amended
and Restated Certificate of Incorporation and (b) all other
conditions precedent to such conversion had occurred.
“Person” means an individual or corporation,
partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity
of any kind.
“Plan” means that certain
Rule 10b5-1
Purchase Plan, dated May 15, 2007, by and among the
Purchaser, the Company and Wachovia Capital Markets, LLC.
“Prospectus” means the prospectus included in
the Registration Statement (including, without limitation, a
prospectus that includes any information previously omitted from
a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any
portion of the Shares covered by the Registration Statement, and
all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by
reference in such Prospectus.
“Registration Statement” means the registration
statement required to be filed hereunder, including the
Prospectus, amendments and supplements to the registration
statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference in the
Registration Statement.
2
“Remainder Amount” means an amount equal to the
funds remaining in the Account (as such term is defined in the
Plan) immediately after the termination of the Plan.
“Rule 144” means Rule 144 promulgated
by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or, to the extent replaced,
the comparable successor thereto.
“Rule 415” means Rule 415 promulgated
by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or, to the extent replaced,
the comparable successor thereto.
“Rule 424” means Rule 424 promulgated
by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or, to the extent replaced,
the comparable successor thereto.
“Secondary Shortfall Amount” means, if the
Initial Shortfall Amount is $6,000,000 the lesser of
(i) $12,000,0000 and (ii) the amount of funds
necessary to consummate the transactions contemplated by the
Stock Purchase Agreement as mutually determined by the Company
and the Sellers’ Representative less $6,000,000.
“SEC Reports” shall have the meaning ascribed
to such term in Section 3.1(g).
“Securities” means the Shares.
“Securities Act” means the Securities Act of
1933, as amended.
“Sellers’ Representative” has the meaning
ascribed to such term in the Stock Purchase Agreement.
“Shares” means the shares of Common Stock
issued or issuable to the Purchasers pursuant to this Agreement.
“Stock Purchase Agreement” has the meaning
ascribed to such term in the definition of CHS Transaction.
“Trading Day” means (i) a day on which the
Common Stock is traded on a Trading Market, or (ii) if the
Common Stock is not listed or admitted for trading on a Trading
Market, a day on which the Common Stock is traded in the
over-the-counter market is quoted in the over-the-counter market
as reported by the National Quotation Bureau Incorporated (or
any similar organization or agency succeeding to its functions
of reporting prices); provided, that in the event that the
Common Stock is not listed or quoted as set forth in (i) or
(ii) hereof, then Trading Day shall mean a Business Day.
“Trading Market” means the American Stock
Exchange (“AMEX”) or, if the Company’s
Common Stock is not listed on AMEX, such other exchange or
quotation system on which the Common Stock is listed or quoted
for trading on the date in question.
“Transaction Documents” means this Agreement,
the Escrow Agreement and any other documents or agreements
executed in connection with the transactions contemplated
hereunder.
ARTICLE II
(a) At the Closing, the Company shall deliver or cause to
be delivered to the Purchaser a certificate evidencing a number
of Shares registered in the name of the Purchaser or a
book-entry transfer of the Shares to the Purchaser equal to
Aggregate Investment Amount divided by the Per Share Purchase
Price.
3
(b) The obligations of each party at the Closing to
consummate the transactions contemplated at the Closing shall be
subject to the satisfaction or waiver of all of the conditions
to closing the CHS Transaction set forth in the Stock Purchase
Agreement.
ARTICLE III
4
Documents, other than (i) the filing of Form D with
the Commission and such filings required by state securities
laws, which the Company will promptly and timely make, and
(ii) such other filings as may be required following the
Closing Date under the Securities Act and the Exchange Act.
5
6
Agreement, shall modify, amend or affect the Purchaser’s
right to rely on the truth, accuracy and completeness of the SEC
Reports and the Company’s representations and warranties
contained in the Transaction Documents.
ARTICLE IV
(a) In connection with any transfer of the Shares other
than pursuant to an effective registration statement or
Rule 144, to the Company or to an Affiliate of the
Purchaser, the Company may require the transferor thereof to
provide to the Company an opinion of counsel selected by the
transferor, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that such
transfer does not require registration of such transferred
Shares under the Securities Act. As a condition of transfer, any
such transferee shall agree in writing to be bound by the terms
of this Agreement and shall have the rights of the Purchaser
under this Agreement.
(b) Certificates evidencing the Shares will contain the
following legend, until such time as they are not required under
Section 4.1(c):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A
FORM REASONABLY SATISFACTORY TO MBF HEALTHCARE ACQUISITION
CORP., THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR
APPLICABLE STATE SECURITIES LAWS.
(c) The Purchaser agrees that the removal of the
restrictive legend from certificates representing Shares as set
forth in this Section 4.1 is predicated upon the
Company’s reliance that the Purchaser will sell any Shares
pursuant to either the registration requirements of the
Securities Act, including any applicable prospectus delivery
requirements, or an exemption therefrom.
7
4.3 Securities Laws Disclosure;
Publicity. By 8:30 a.m. (New York time) on
the fourth Business Day following the date of this Agreement,
the Company shall issue a press release reasonably acceptable to
the Purchaser disclosing the transactions contemplated hereby
and file a Current Report on
Form 8-K
disclosing the material terms of the transactions contemplated
hereby. In addition, the Company will make such other filings
and notices in the manner and time required by the Commission
and the Trading Market on which the Common Stock is listed.
Notwithstanding the foregoing, nothing herein shall prevent the
Company from selling Shares to additional purchasers, provided
that, the Company shall make the filings and disclosures as
required by this Section 4.3, to the extent required by law.
(a) On or prior to the Filing Date, the Company shall
prepare and file with the Commission a Registration Statement
covering the resale of all of the Shares and any shares of
Common Stock that may be issued to the Purchaser as the Share
Amount paid under the letter agreement between the Company and
the Purchaser dated as of the date hereof (the “Share
Amount Shares” and together with the Shares, the
“Registrable Shares”) for an offering to be
made on a continuous basis pursuant to Rule 415, or if
Rule 415 is not available for offers or sales of the
Registrable Shares, for such other means of distribution of
Registrable Shares as the Purchaser may specify. The
Registration Statement required hereunder shall be on
Form S-3
(except if the Company is not then eligible to register for
resale the Registrable Shares on
Form S-3,
in which case the registration shall be on another appropriate
form in accordance herewith). The Company is eligible to
register for resale the Registrable Shares on
Form S-3.
The Company shall use its commercially reasonable efforts to
cause the Registration Statement to be declared effective under
the Securities Act as promptly as possible after the filing
thereof, and shall use its commercially reasonable efforts to
keep such Registration Statement continuously effective under
the Securities Act (including the filing of any necessary
amendments, post-effective amendments and supplements) until
such date when all of the Registrable Shares (i) have been
sold or (ii) may be sold free of volume restrictions
pursuant to Rule 144 promulgated under the Securities Act,
as determined by the counsel to the Company pursuant to a
written opinion letter to such effect, addressed and reasonably
acceptable to the Company’s transfer agent and the
Purchaser. The Company shall as promptly as possible
8
telephonically request effectiveness of the Registration
Statement as of 5:00 pm Eastern Time on a Trading Day. The
Company shall immediately notify the Purchaser via facsimile of
the effectiveness of a Registration Statement on the same
Trading Day that the Company telephonically confirms
effectiveness with the Commission, which shall be the date
requested for effectiveness of the Registration Statement. The
Company shall, by 5:30 pm Eastern Time on the Trading Day after
the day the Commission declares the Registration Statement
effective, file a Rule 424(b) prospectus with the Commission.
(b) The Company shall pay all expenses arising from or
incident to its performance of, or compliance with,
Section 4.7 of this Agreement, including, without
limitation, (i) Commission, stock exchange and Financial
Industry Regulatory Authority registration and filing fees,
(ii) all fees and expenses incurred in complying with
securities or “blue sky” laws (including reasonable
fees, charges and disbursements of counsel to any underwriter
incurred in connection with “blue sky” qualifications
of the Registrable Shares as may be set forth in any
underwriting agreement), (iii) all printing, messenger and
delivery expenses, (iv) the fees, charges and expenses of
one counsel to the Purchaser not to exceed $25,000, any
necessary counsel with respect to state securities law matters,
counsel to the Company and of its independent public
accountants, and any other accounting fees, charges and expenses
incurred by the Company (including, without limitation, any
expenses arising from any “cold comfort” letters or
any special audits incident to or required by any registration
or qualification) and any legal fees, charges and expenses
incurred by the Purchaser, as the case may be, and (v) any
liability insurance or other premiums for insurance obtained in
connection with the registration contemplated by
Section 4.7 of this Agreement, regardless of whether the
Registration Statement is declared effective. All of the
expenses described in the preceding sentence of this
Section 4.7 are referred to herein as “Registration
Expenses.”
(c) The Company agrees to indemnify and hold harmless the
Purchaser and, to the extent the Purchaser is an entity, its
partners, directors, officers, affiliates, stockholders,
members, employees, trustees and each Person who controls
(within the meaning of Section 15 of the Securities Act)
the Purchaser from and against any and all losses, claims,
damages, liabilities and expenses, or any action or proceeding
in respect thereof (including reasonable costs of investigation
and reasonable attorneys’ fees and expenses) (each, a
“Liability” and collectively,
“Liabilities”), arising out of or based upon
(a) any untrue, or allegedly untrue, statement of a
material fact contained in the Disclosure Package, the
Registration Statement, the Prospectus, any Free Writing
Prospectus or in any amendment or supplement thereto; and
(b) the omission or alleged omission to state in the
Disclosure Package, the Registration Statement, the Prospectus,
any Free Writing Prospectus or in any amendment or supplement
thereto any material fact required to be stated therein or
necessary to make the statements therein not misleading under
the circumstances such statements were made; provided, however,
that the Company shall not be held liable in any such case to
the extent that any such Liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission
or alleged omission contained in such Disclosure Package,
Registration Statement, Prospectus, Free Writing Prospectus or
such amendment or supplement thereto in reliance upon and in
conformity with information concerning the Purchaser furnished
in writing to the Company by or on behalf of the Purchaser
expressly for use therein.
(d) Any person or entity entitled to indemnification or
contribution hereunder (the “Indemnified
Party”) agrees to give prompt written notice to the
indemnifying party (the “Indemnifying Party”)
after the receipt by the Indemnified Party of any written notice
of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for which the
Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement; provided, however, that
the failure to so notify the Indemnifying Party shall not
relieve the Indemnifying Party of any Liability that it may have
to the Indemnified Party hereunder (except to the extent that
the Indemnifying Party forfeits substantive rights or defenses
by reason of such failure). If notice of commencement of any
such action is given to the Indemnifying Party as above
provided, the Indemnifying Party shall be entitled to
participate in and, to the extent it may wish, jointly with any
other Indemnifying Party similarly notified, to assume the
defense of such action at its own expense, with counsel chosen
by it and reasonably satisfactory to such Indemnified Party.
Each Indemnified Party shall have the right to employ separate
counsel in any such action and participate in the defense
thereof, but the reasonable and documented out of pocket fees
9
and expenses of such counsel shall be paid by the Indemnified
Party unless (i) the Indemnifying Party agrees to pay the
same, (ii) the Indemnifying Party fails to assume the
defense of such action with counsel reasonably satisfactory to
the Indemnified Party or (iii) the named parties to any
such action (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and such parties
have been advised by such counsel that either
(x) representation of such Indemnified Party and the
Indemnifying Party by the same counsel would be inappropriate
under applicable standards of professional conduct or
(y) there may be one or more legal defenses available to
the Indemnified Party which are different from or additional to
those available to the Indemnifying Party. In any of such cases,
the Indemnifying Party shall not have the right to assume the
defense of such action on behalf of such Indemnified Party, it
being understood, however, that the Indemnifying Party shall not
be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all
Indemnified Parties and all fees and expenses shall be
reimbursed as incurred. No Indemnifying Party shall be liable
for any settlement entered into without its written consent,
which consent shall not be unreasonably withheld. No
Indemnifying Party shall, without the consent of such
Indemnified Party, effect any settlement of any pending or
threatened proceeding in respect of which such Indemnified Party
is a party and indemnity has been sought hereunder by such
Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all
liability for claims that are the subject matter of such
proceeding. Notwithstanding the foregoing, if at any time an
Indemnified Party shall have requested the Indemnifying Party to
reimburse the Indemnified Party for fees and expenses of counsel
as contemplated by this Section 4.7, the Indemnifying Party
agrees that it shall be liable for any settlement of any
proceeding effected without the Indemnifying Party’s
written consent if (i) such settlement is entered into more
than thirty (30) business days after receipt by the
Indemnifying Party of the aforesaid request and (ii) the
Indemnifying Party shall not have reimbursed the Indemnified
Party in accordance with such request or contested the
reasonableness of such fees and expenses prior to the date of
such settlement.
(e) If the indemnification provided for in this
Section 4.7 from the Indemnifying Party is unavailable to
an Indemnified Party hereunder or insufficient to hold harmless
an Indemnified Party in respect of any Liabilities referred to
herein, then the Indemnifying Party, in lieu of indemnifying
such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such
Liabilities in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party
in connection with the actions which resulted in such
Liabilities, as well as any other relevant equitable
considerations. The relative faults of such Indemnifying Party
and Indemnified Party shall be determined by reference to, among
other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties’
relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the Liabilities referred to
above shall be deemed to include, subject to the limitations set
forth in Sections 4.7(c) and (d), any reasonable and documented
out of pocket legal or other fees, charges or expenses
reasonably incurred by such party in connection with any
investigation or proceeding; provided, that the total amount to
be contributed by the Purchaser shall be limited to the net
proceeds received by the Purchaser in the offering.
(1) offer for sale, sell, pledge or otherwise dispose of or
enter into any transaction or device that is designed to, or
could be expected to, result in the disposition by any person at
any time in the future of the Shares;
(2) enter into any swap or other derivatives transaction
that transfers to another, in whole or in part, any of the
economic benefits or risks of ownership of Shares, whether any
such transaction is to be settled by delivery of Shares or other
securities, in cash or otherwise; or
10
(3) publicly disclose the intention to do any of the
foregoing, for a period commencing on the date of the Closing
and ending on the
Lock-Up
Period End Date;
provided, that, the provisions of Section 4.8 shall not
apply to (a) the registration of the offer and sale of
Common Stock and the sale of the Common Stock in an offering as
contemplated by Section 4.7 of this Agreement,
(b) bona fide gifts, provided the recipient thereof agrees
in writing with the Company to be bound by the terms of this
Section 4.8, (c) transactions relating to shares of
Common Stock or other securities acquired in open market
transactions after the Closing Date or (d) with the
Company’s prior written consent.
ARTICLE V
5.4 Notices. Any and all notices or other
communications or deliveries required or permitted to be
provided hereunder shall be in writing and shall be deemed given
and effective on the earliest of (a) the date of
transmission, if such notice or communication is delivered via
facsimile at the facsimile number specified in this Section
prior to 5:00 p.m. (New York City time) on a Trading Day,
(b) the next Trading Day after the date of transmission, if
such notice or communication is delivered via facsimile at the
facsimile number specified in this Section on a day that is not
a Trading Day or later than 5:00 p.m. (New York City time)
on any Trading Day, (c) the Trading Day following the date
of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to
whom such notice is required to be given. The address for such
notices and communications shall be as follows:
|
If to the Company:
|
MBF Healthcare Acquisition Corp. 000 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxx Xxxxxx, Xxxxxxx 00000 Attn: Xxxxxx X. Xxxxxxxxx |
|
|
With a copy to:
|
Akerman Senterfitt Xxx Xxxxxxxxx 0xx Xxxxxx Xxxxx, Xxxxxxx 00000 Attn: Xxxxx Xxxxxxxxxxx, Esq. |
|
|
If to the Purchaser:
|
To the address set forth under the Purchaser’s name on the signature pages hereof; |
or such other address as may be designated in writing hereafter,
in the same manner, by such Person.
5.5 Amendments; Waivers. No provision of this
Agreement may be waived or amended except in a written
instrument signed by the Company and the Purchaser. No waiver of
any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing
waiver in the future
11
or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay
or omission of either party to exercise any right hereunder in
any manner impair the exercise of any such right
5.9 Governing Law. This Agreement shall
be governed and construed in accordance with the internal laws
(without reference to choice or conflict of laws) of the State
of New York. Each party hereby waives all right to a trial by
jury in any action, suit or proceeding brought to enforce or
defend any rights or remedies under this Agreement. Each party
irrevocably consents to the service of any and all process in
any such action, suit or proceeding by the delivery of such
process to such party at the address and in the manner provided
in Section 5.4.
12
performance under the Transaction Documents. The parties agree
that monetary damages may not be adequate compensation for any
loss incurred by reason of any breach of obligations described
in the foregoing sentence and hereby agrees to waive in any
action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW]
SIGNATURE PAGES FOLLOW]
13
IN WITNESS WHEREOF, the parties hereto have caused this
Subscription Agreement to be duly executed by their respective
authorized signatories as of the date first indicated above.
/s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
| Title: | Chairman and Chief Executive Officer |
14
IN WITNESS WHEREOF, the parties have executed this Subscription
Agreement as of the date first written above.
PURCHASER:
MBF HEALTHCARE PARTNERS, L.P.
| By: | MBF Healthcare Advisors I, L.P., its general partner |
| By: | MBF Healthcare Advisors, LLC, its general partner |
| By: |
Name:
| Title: |
Address of Notice:
Tel:
Fax:
15
