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”).
WHEREAS, subject to the terms and conditions set forth in this
Agreement and pursuant to Section 4(2) of the Securities
Act (as defined below) and Rule 506 promulgated thereunder,
the Company desires to issue and sell to the Purchaser, and the
Purchaser desires to purchase from the Company certain
securities of the Company, as more fully described in this
Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants
contained in this Agreement, and for other good and valuable
consideration the receipt and adequacy of which are hereby
acknowledged, the Company and the Purchasers agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. In addition to the terms defined
elsewhere in this Agreement, for all purposes of this Agreement,
the following terms shall have the meanings indicated in this
Section 1.1:
“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.
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“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.
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“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
PURCHASE AND
SALE
2.1 Closing; Escrow. Subject to the terms
and conditions set forth in this Agreement, at the Closing the
Company shall issue and sell to the Purchaser, and the Purchaser
shall purchase from the Company, the Shares representing the
Aggregate Investment Amount. Promptly upon the satisfaction of
each of the applicable conditions set forth in Section 2.2,
the Closing shall occur at the offices of Akerman Senterfitt,
Xxx Xxxxxxxxx 0xx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx
00000 or at such other location or time as the parties shall
mutually agree.
2.2 Closing Conditions.
(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.
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(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
REPRESENTATIONS
AND WARRANTIES
3.1 Representations and Warranties of the
Company. The Company hereby makes the following
representations and warranties to the Purchaser:
(a) Organization and Qualification. The
Company is an entity duly incorporated, validly existing and in
good standing under the laws of the State of Delaware, with the
requisite power and authority to own and use its properties and
assets and to carry on its business as currently conducted. The
Company is not in violation of any of the provisions of its
certificate of incorporation or bylaws. The Company is duly
qualified to conduct business and is in good standing as a
foreign corporation in each jurisdiction in which the nature of
the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, would not,
individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect and no Action has been
instituted in any such jurisdiction revoking, limiting or
curtailing or seeking to revoke, limit or curtail such power and
authority or qualification.
(b) Authorization; Enforcement. Other
than the Buyer Stockholder Approval (as such term is defined in
the Stock Purchase Agreement), the Company has all requisite
corporate power and authority, and has taken all requisite
corporate action to enter into and to consummate the
transactions contemplated by each of the Transaction Documents
and otherwise to carry out its obligations thereunder. The
execution and delivery of each of the Transaction Documents by
the Company and the consummation by it of the transactions
contemplated thereby have been duly authorized by all necessary
action on the part of the Company and no further action is
required by the Company in connection therewith, except for the
Buyer Stockholder Approval. Each Transaction Document has been
(or upon delivery will have been) duly executed by the Company
and, when delivered in accordance with the terms hereof, will
constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
except as limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally and
(ii) general principles of equity.
(c) No Conflicts. Other than the Buyer
Stockholder Approval, the execution, delivery and performance of
the Transaction Documents by the Company and the consummation by
the Company of the transactions contemplated thereby do not and
will not (i) conflict with or violate any provision of the
Company’s certificate of incorporation or bylaws, or
(ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt
or other instrument (evidencing a Company debt or otherwise) or
other understanding to which the Company is a party or by which
any property or asset of the Company is bound or affected, or
(iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any
court or governmental authority to which the Company is subject
(including federal and state securities laws and regulations),
or by which any property or asset of the Company is bound or
affected; except in the case of clause (iii), such as would not,
individually or in the aggregate, reasonably be expected to be
material to the business or the operation of the Company or
materially impair the Company’s ability to consummate the
transaction contemplated hereby.
(d) Filings, Consents and
Approvals. Other than the Buyer Stockholder
Approval, the Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make
any filing or registration with, any court or other federal,
state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the
Company of the Transaction
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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.
(e) Issuance of the Securities. The
Shares have been duly authorized and, when issued and paid for
in accordance with the Transaction Documents, will be duly and
validly issued, fully paid and nonassessable, free and clear of
all Liens and preemptive rights. The Company has reserved from
its duly authorized capital stock all of the Shares issuable
pursuant to this Agreement.
(f) Capitalization. The capitalization of
the Company conforms as to legal matters to the description
thereof contained in the Company’s most recent periodic
report filed with the Commission at least two Business Days
prior to the date hereof. No securities of the Company are
entitled to preemptive or similar rights, and no Person has any
right of first refusal, preemptive right, right of
participation, or any similar right to participate in the
transactions contemplated by the Transaction Documents. The
Company has no authorized or outstanding bonds, debentures,
notes or other indebtedness the holders of which have the right
to vote (or convertible into, exchangeable for, or evidencing
the right to subscribe for or acquire securities having the
right to vote). All of the outstanding shares of capital stock
of the Company are validly issued, fully paid and nonassessable,
have been issued in compliance with all federal and state
securities laws, and none of such outstanding shares was issued
in violation of any preemptive rights or similar rights to
subscribe for or purchase securities. In connection with the CHS
Transaction, on the Closing Date, the Company will issue shares
of common stock pursuant to private transactions and such shares
shall be sold at a price per share no less than the Per Share
Purchase Price. Other than the Buyer Stockholder Approval, no
further approval or authorization of any stockholder, the Board
of Directors of the Company or others is required for the
issuance and sale of the Shares. Except as disclosed in the SEC
Reports, there are no stockholders agreements, voting agreements
or other similar agreements with respect to the Company’s
capital stock to which the Company is a party or, to the
knowledge of the Company, between or among any of the
Company’s stockholders.
(g) SEC Reports; Financial
Statements. The Company has filed all reports,
registrations, schedules, forms, statements and other documents
required to be filed by it under the Securities Act and the
Exchange Act, including pursuant to Section 13(a) or 15(d)
thereof, or with any Governmental Authority, for the twelve
months preceding the date hereof (or such shorter period as the
Company was required by law to file such reports) (the foregoing
materials being collectively referred to herein as the
“SEC Reports”) on a timely basis or has timely
filed a valid extension of such time of filing and has filed any
such SEC Reports prior to the expiration of any such extension.
As of their respective dates, the SEC Reports complied in all
material respects with the requirements of the Securities Act
and the Exchange Act and the rules and regulations of the
Commission promulgated thereunder, and the rules and regulations
of any other Governmental Authority with which the SEC Reports
were made or should have been made, and none of the SEC Reports,
when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
The financial statements of the Company included in the SEC
Reports comply in all material respects with the rules and
regulations of the Commission with respect thereto as in effect
at the time of filing. Such financial statements have been
prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the periods
involved (“GAAP”), except as may be otherwise
specified in such financial statements or the notes thereto and
except that unaudited financial statements may not contain all
footnotes required by GAAP, and fairly present in all material
respects the financial position of the Company and its
consolidated subsidiaries as of and for the dates thereof and
the results of operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
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3.2 Representations and Warranties of the
Purchasers. The Purchaser hereby represents and
warrants to the Company as follows:
(a) Organization; Authority. The
Purchaser is (i) an entity duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
organization to enter into and to consummate the transactions
contemplated by the applicable Transaction Documents and
otherwise to carry out its, his or her obligations thereunder.
The execution, delivery and performance by the Purchaser of the
transactions contemplated by this Agreement has been duly
authorized by all necessary partnership action, on the part of
the Purchaser. This Agreement has been duly executed by the
Purchaser, and when delivered by the Purchaser in accordance
with terms hereof, will constitute the valid and legally binding
obligation of the Purchaser, enforceable against it in
accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, or similar
laws relating to or affecting the enforcement of creditors’
rights generally and (ii) as limited by equitable
principles generally.
(b) Investment Intent. The Purchaser
understands that the Shares are “restricted
securities” and have not been registered under the
Securities Act or any applicable state securities law and is
acquiring the Shares as principal for its own account for
investment purposes only and not with a present view to or for
distributing or reselling such Shares or any part thereof, has
no present intention of distributing any of such Shares, other
than as set forth herein, and has no arrangement or
understanding with any other person or persons regarding the
distribution of such Shares (this representation and warranty
not limiting the Purchaser’s right to sell the Shares in
compliance with applicable federal and state securities laws).
The Purchaser has not engaged, during the one month prior to the
date of this Agreement, in any short sales with respect to the
Common Stock. The Purchaser further represents that, between the
time it became aware of the transactions contemplated by this
Agreement and the public announcement of this Agreement or the
termination hereof, it has not engaged and will not engage in
any trades, whether purchases, sales, short sales or otherwise,
with respect to the Common Stock or any other security of the
Company.
(c) Purchaser Status/Residence. At the
time the Purchaser was offered the Shares, it was, and at the
date hereof it is an “accredited investor” as defined
in Rule 501(a) under the Securities Act. The Purchaser is
not a registered broker-dealer under Section 15 of the
Exchange Act. It has been organized under the laws of the state
or country set forth opposite its name on signature page.
(d) Experience of The Purchaser. The
Purchaser, either alone or together with its representatives,
has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the
merits and risks of the prospective investment in the Shares,
and has so evaluated the merits and risks of such investment.
The Purchaser is able to bear the economic risk of an investment
in the Shares and is able to afford a complete loss of such
investment. The Purchaser acknowledges that it is familiar with,
and that the Company has made no statements, representations or
warranties regarding, the assets and liabilities, the financial
condition and prospects of CHS.
(e) General Solicitation. The Purchaser
is not purchasing the Shares as a result of any advertisement,
article, notice or other communication regarding the Shares
published in any newspaper, magazine or similar media or
broadcast over television or radio or presented at any seminar
or any other general solicitation or general advertisement.
(f) Access to Information. The Purchaser
acknowledges that it has reviewed the SEC Reports and has been
afforded (i) the opportunity to ask such questions as it
has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and
conditions of the offering of the Shares and the merits and
risks of investing in the Shares; (ii) the opportunity to
have access to information about the Company and its financial
condition, results of operations, business, properties,
management and prospects sufficient to enable it to evaluate its
investment; and (iii) the opportunity to obtain such
additional information that the Company possesses or can acquire
without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
Neither such inquiries nor any other investigation conducted by
or on behalf of the Purchaser or its representatives or counsel,
nor any other provision in any Transaction Document or the Stock
Purchase
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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.
(g) Exemptions from Registration. The
Purchaser understands that the Shares are being offered and will
be sold to it in reliance on specific exemptions from the
registration requirements of the United States federal and state
securities laws and that the Company is relying upon the truth
and accuracy of, and the Purchaser’s compliance with, the
representations and warranties of the Purchaser set forth herein
in order to determine the availability of such exemptions and
the eligibility of the Purchaser to acquire such Shares.
(h) No Governmental Approval. The
Purchaser understands that no United States federal or state
agency or any other government or governmental agency has passed
on or made any recommendation or endorsement of the Shares or
the fairness or suitability of the investment in the Shares by
the Purchaser nor have such authorities passed upon or endorsed
the merits of the offering of the Shares.
(i) Unregistered Shares. The Purchaser
understands that the Shares have not been registered under the
Act or any state securities laws and may not be offered for
sale, sold, assigned or transferred unless (i) subsequently
registered thereunder or (ii) sold in reliance on an
exemption therefrom.
(j) No Tax or Legal Advice. The Purchaser
understands that nothing in this Agreement, any other
Transaction Document or any other materials presented to the
Purchaser in connection with the purchase and sale of the Shares
constitutes legal, tax or investment advice. The Purchaser has
consulted such legal, tax and investment advisors as it, in its
sole discretion, has deemed necessary or appropriate in
connection with its purchase of Shares.
ARTICLE IV
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer.
(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.
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4.2 Furnishing of Information. As long
as the Purchaser owns the Shares, the Company covenants to
timely file (or obtain extensions in respect thereof and file
within the applicable grace period) all reports required to be
filed by the Company after the date hereof pursuant to the
Exchange Act. As long as the Purchaser owns Shares, if the
Company is not required to file reports pursuant to such laws,
it will prepare and furnish to the Purchaser and make publicly
available in accordance with Rule 144(c) such information
as is required for the Purchaser to sell such Shares under
Rule 144. The Company further covenants that it will take
such further action as any holder of Shares may reasonably
request, all to the extent required from time to time to enable
such Person to sell such Shares without registration under the
Securities Act within the limitation of the exemptions provided
by Rule 144.
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.
4.4 Non-Public Information. The Company
covenants and agrees that, following the termination of the
existing confidentiality agreements between the Company and the
Purchaser, neither it nor any other Person acting on its behalf
will provide the Purchaser or its agents or counsel with any
information that the Company reasonably believes constitutes
material non-public information, unless prior thereto the
Purchaser shall have executed a written agreement regarding the
confidentiality and use of such information. The Company
understands and confirms that the Purchaser shall be relying on
the foregoing representations in effecting transactions in
securities of the Company. A definitive proxy statement will be
delivered in connection with the CHS Transaction that will
publicly disclose all of the material written information
heretofore provided to the Purchaser by the Company with respect
to the Company.
4.5 Reservation of Stock. As of the date
hereof, the Company has reserved and the Company shall continue
to reserve and keep available at all times, free of preemptive
rights, a sufficient number of shares of Common Stock for the
purpose of enabling the Company to issue Shares pursuant to this
Agreement.
4.6 Listing of Common Stock. The Company
hereby agrees to use commercially reasonably efforts to maintain
the listing of the Common Stock on the Trading Market.
4.7 Registration of Shares.
(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.
4.8 Lock-Up. The
Purchaser hereby irrevocably agrees that following the Closing
and for a period of 180 days from the Closing (the
“Lock-Up Period End Date”), the Purchaser will
not, directly or indirectly:
(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.
4.9 Form D. No later than ten
(10) days after the Closing, the Company shall file a
Form D with respect to the Shares as required under
Regulation D promulgated under the Securities Act and shall
provide a copy thereof to the Purchaser promptly after filing.
ARTICLE V
MISCELLANEOUS
5.1 Termination. This Agreement will
automatically be null and void and have no further force or
effect upon the termination of the Stock Purchase Agreement.
5.2 Fees and Expenses. Except as set
forth in Section 4.7(b), the Purchaser and the Company
shall pay the fees and expenses of its own advisers, counsel,
accountants and other experts, if any, and all other expenses
incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of the Transaction
Documents. The Company shall pay all stamp and other taxes and
duties levied in connection with the issuance of the Shares
under this Agreement.
5.3 Entire Agreement. The Transaction
Documents, together with the Exhibits and Schedules thereto,
contain the entire understanding of the parties with respect to
the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters,
which the parties acknowledge have been merged into such
documents, exhibits and schedules.
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
5.6 Construction. The headings herein are
for convenience only, do not constitute a part of this Agreement
and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied
against any party. This Agreement shall be construed as if
drafted jointly by the parties, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provisions of this Agreement or any of the
Transaction Documents.
5.7 Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns. The Company
may not assign this Agreement or any rights or obligations
hereunder without the prior written consent of the Purchaser.
The Purchaser may assign any or all of its rights under this
Agreement to any Person to whom the Purchaser assigns or
transfers any Shares, provided such transferee agrees in writing
to be bound, with respect to the transferred Shares, by the
provisions hereof that apply to the Purchaser.
5.8 No Third-Party Beneficiaries. This
Agreement is intended for the benefit of the parties hereto and
their respective successors and permitted assigns and is not for
the benefit of, nor may any provision hereof be enforced by, any
other Person, except as otherwise set forth in Section 4.8.
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.
5.10 Survival. The representations,
warranties, agreements and covenants contained herein shall
survive the Closing and the delivery of the Shares.
5.11 Execution. This Agreement may be
executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and
shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood
that both parties need not sign the same counterpart. In the
event that any signature is delivered by facsimile transmission,
such signature shall create a valid and binding obligation of
the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile
signature page were an original thereof.
5.12 Severability. If any provision of
this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms
and provisions of this Agreement shall not in any way be
affected or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall
incorporate such substitute provision in this Agreement.
5.13 Replacement of Securities. If any
certificate or instrument evidencing any Shares is mutilated,
lost, stolen or destroyed, the Company shall issue or cause to
be issued in exchange and substitution for and upon cancellation
thereof, or in lieu of and substitution therefor, a new
certificate or instrument, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or
destruction and customary and reasonable indemnity, if
requested. The applicants for a new certificate or instrument
under such circumstances shall also pay any reasonable
third-party costs associated with the issuance of such
replacement Shares. If a replacement certificate or instrument
evidencing any Shares is requested due to a mutilation thereof,
the Company may require delivery of such mutilated certificate
or instrument as a condition precedent to any issuance of a
replacement.
5.14 Remedies. In addition to being
entitled to exercise all rights provided herein or granted by
law, including recovery of damages, each of the Purchaser and
the Company will be entitled to specific
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
