EXHIBIT 4.10
EXCHANGE AGENT AGREEMENT
THIS EXCHANGE AGENT AGREEMENT (this "Agreement"), dated as of _____,
2006, is entered into by and among ATS Medical, Inc., a Minnesota corporation
("Parent"), 3F Therapeutics, Inc., a Delaware corporation (the "Company") and
Xxxxx Fargo Bank, N.A. (the "Exchange Agent").
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
January 23, 2006 (the "Merger Agreement"), entered into by and among Parent,
Seabiscuit Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("Merger Subsidiary"), the Company, and a certain
representative of the stockholders of the Company, Merger Subsidiary will be
merged with and into the Company (the "Merger"), effective as of _____, 2006
(the "Effective Time"), such that the Company will survive the Merger and
continue as a wholly-owned subsidiary of Parent. Capitalized terms not otherwise
defined herein shall have the meanings ascribed them in the Merger Agreement.
WHEREAS, Section 2.5 of the Merger Agreement contemplates the retention
of the Exchange Agent for the purpose of effecting the distribution of cash, if
applicable, and of shares of common stock, $0.01 par value per share, of Parent
("Parent Common Stock"), in exchange for all of the outstanding shares of the
Company's (a) common stock, $0.001 par value per share ("Company Common Stock"),
(b) Series A Preferred Stock, par value $.001 per share ("Series A Preferred"),
(c) Series B Preferred Stock, par value $.001 per share ("Series B Preferred"),
(d) Series C Preferred Stock, par value $.001 per share ("Series C Preferred"),
(e) Series D Preferred Stock, par value $.001 per share ("Series D Preferred"),
and (f) Series E Preferred Stock, par value $.001 per share ("Series E
Preferred" and, together with the Series A Preferred, Series B Preferred, Series
C Preferred and Series D Preferred, the "Company Preferred Stock")), (such
Company Common Stock and Company Preferred Stock, the "Company Capital Stock"),
pursuant to the terms of the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the parties hereto agree as
follows:
ARTICLE 1
1.1 Exchange Agent Appointment. Parent and the Company hereby appoint
the Exchange Agent to act in accordance with the terms set forth in this
Agreement, the Escrow Agreement and the Merger Agreement. The Exchange Agent
hereby accepts such appointment and agrees to be bound by and comply with the
terms of this Agreement and the Letter of Transmittal (as defined below).
1.2 Distribution of Parent Common Stock and Cash. As consideration for
the Merger, Parent hereby agrees to make available to the Exchange Agent for the
benefit of the holders of Company Capital Stock (other than shares cancelled
pursuant to Section 2.1(a) of the Merger Agreement and Dissenting Shares) shares
of Parent Common Stock that will be exchanged for shares of Company Capital
Stock. Subject to the terms of the Merger Agreement, Parent shall
make available or, if applicable, shall cause the Escrow Agent to make
available, to the Exchange Agent:
(a) At the Effective Time, that number of shares of Parent Common
Stock equal to the Closing Date Shares (the "Initial Shares").
(b) If applicable, following the final determination of the
Adjustment Amount in accordance with Section 2.3 of the Merger Agreement, that
number of shares of Parent Common Stock equal to the Adjustment Amount divided
by the Parent Closing Share Price, rounded down to the nearest whole share.
(c) At the times provided for in the Escrow Agreement, that number
of shares of Parent Common Stock equal to that portion of the remaining Escrow
Shares required to be deposited by the Escrow Agent with the Exchange Agent on
such date or dates.
(d) Within two (2) Business Days of each Milestone Date, that
number of shares of Parent Common Stock equal to that portion of the Milestone
Consideration payable in connection with such Milestone Date.
In each case, at the same time that Parent makes available to the Exchange Agent
the proper number of shares of Parent Common Stock payable pursuant to this
Section, Parent shall also remit to the Exchange Agent the amount of cash, if
any, required to redeem any fractional shares of Parent Common Stock that would
otherwise be payable to the Stockholders. The shares of Parent Common Stock and
the amount of cash, if any, payable to the Stockholders in accordance with the
Merger Agreement and this Agreement shall be distributed by the Exchange Agent
to the Stockholders concurrently and shall be registered and delivered in the
names and in the percentages set forth on Exhibit A attached hereto.
1.3 List of the Company's Record Holders. The Company shall furnish to
the Exchange Agent, in electronic format if available, and in paper copy, a
complete and correct list of the holders of record (the "Record Holders") of the
Company Capital Stock as of the Effective Time (the "Record Holder List"). The
Record Holder List shall contain such Record Holder information as the Exchange
Agent may reasonably request, including (a) the name of each Record Holder, (b)
the address of each Record Holder, and (c) the number of shares of Company
Common Stock, if any, owned by each Record Holder immediately prior to the
Effective Time. A copy of such Record Holder List is set forth on Exhibit B
attached hereto.
ARTICLE 2
2.1 Convey Letter of Transmittal. The Exchange Agent covenants and
agrees that as promptly as reasonably practicable after the Effective Time, the
Exchange Agent shall send to each Record Holder of an outstanding certificate or
certificates of Company Capital Stock (to the extent such certificates have not
already been submitted to the Exchange Agent) a package of documents that
includes (i) a letter of transmittal, in substantially the form attached hereto
as Exhibit C (the "Letter of Transmittal"), (ii) information advising such
Record Holder of the terms of such exchange and the procedure for surrendering
to the Exchange Agent such certificate or certificates of Company Capital Stock
in exchange for cash, if applicable, and a certificate or certificates
evidencing shares of Parent Common Stock, and (iii) a return envelope
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addressed to the Exchange Agent. At the Effective Time, each share of Company
Capital Stock (if applicable, on an as-converted basis) became convertible into
the right to receive _____ Initial Shares in accordance with the terms of the
Merger Agreement.
2.2 Convey Initial Shares. Following the Closing Date, and upon receipt
by the Exchange Agent from a Record Holder of a certificate or certificates
representing shares of Company Capital Stock, accompanied by the appropriate
Letter of Transmittal duly completed and executed in accordance with the
instructions appearing therein, the Exchange Agent shall, as soon as reasonably
practicable, deliver to such Record Holder (or to a transferee specified in such
Letter of Transmittal) the appropriate number of Initial Shares in exchange for
the shares of Company Capital Stock held by such Record Holder. All of the
shares of Company Capital Stock surrendered to the Exchange Agent shall be
immediately canceled. The Exchange Agent is authorized to waive any
irregularities in connection with any tender of Company Capital Stock only with
the prior written consent of Parent.
2.3 Convey Remaining Escrow Shares. If the conditions set forth in this
Agreement, the Escrow Agreement and the Merger Agreement related to the payment
of Escrow Shares, if any, are satisfied, the Exchange Agent shall deliver to
each Record Holder (or to a transferee specified in such Letter of Transmittal),
within five (5) Business Days after any Escrow Shares are deposited by the
Escrow Agent with the Exchange Agent in accordance with the terms and conditions
set forth in the Escrow Agreement, a number of shares of Parent Common Stock
equal to his, her or its portion of such Escrow Shares, if any.
2.4 Convey Contingent Shares. If the conditions set forth in this
Agreement and the Merger Agreement related to the payment of Milestone
Consideration are satisfied, the Exchange Agent shall deliver to each Record
Holder (or to a transferee specified in the Letter of Transmittal), within five
(5) Business Days after each applicable Milestone Date, that number of shares of
Parent Common Stock equal to that portion of the Milestone Consideration payable
in connection with such Milestone Date.
2.5 Legend on Parent Common Stock. If a Record Holder is a party to a
Share Transfer Restriction Agreement with Parent, each certificate representing
shares of Parent Common Stock issued to such Record Holder or its transferee
shall bear the following legend on the back of each certificate:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER, AS SET FORTH IN A SHARE TRANSFER RESTRICTION
AGREEMENT ENTERED INTO BETWEEN PARENT AND THE HOLDER OF THIS
CERTIFICATE, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF
PARENT.
2.6 No Fractional Shares of Parent Common Stock. No certificate or
scrip for fractional shares of Parent Common Stock shall be issued upon the
surrender for or exchange of Company Capital Stock. In lieu of such fractional
shares, any Record Holder or transferee who would otherwise be entitled to
fractional shares of Parent Common Stock (determined after taking into account
all shares of Company Capital Stock delivered by such holder) shall, upon
surrender of his, her or its certificate or certificates representing Company
Capital Stock and on
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each date on which Parent Common Stock is paid pursuant to the terms and
conditions of the Merger Agreement, be paid the cash value of each such fraction
(without interest), which shall be equal to such Record Holder's proportionate
interest in the excess of (i) the number of full shares of Parent Common Stock
issuable pursuant to the Merger Agreement on such date, over (ii) the aggregate
number of full shares of Parent Common Stock to be distributed to the
Stockholders on such date (in each case, such excess, the "Excess Shares"). The
value of the Excess Shares shall be calculated by Parent based upon the Parent
Closing Share Price, the price as determined under Section 9.6(a) of the Merger
Agreement, the Average Market Price or the Parent Milestone Share Price, as and
if applicable. In other words, Parent will pay each holder of Company Capital
Stock that would otherwise have been entitled to a fraction of a share of Parent
Common Stock, cash (without interest) in an amount equal to his, her or its
proportionate interest in the value of the Excess Shares.
2.7 Lost Certificates. If any Record Holder shall report that his, her
or its failure to surrender any certificate or certificates representing shares
of Company Capital Stock registered in his, her or its name is due to the loss,
misplacement or destruction of such certificate or certificates, the Exchange
Agent may require such Record Holder to furnish an affidavit of lost stock
certificate in form satisfactory to the Exchange Agent and Parent before
delivering to such Record Holder or his, her, or its transferee the certificate
or certificates for the shares of Parent Common Stock and cash, if applicable,
to which he, she, or it is entitled.
2.8 Return of Parent Common Stock and Cash. To the extent permitted by
applicable law, the Exchange Agent shall return to Parent, upon demand by
Parent, any cash and certificates for shares of Parent Common Stock delivered to
the Exchange Agent for exchange in connection with the Merger six (6) months
after (i) the Effective Time in regards to the Initial Shares, (ii) the
applicable date of deposit with the Exchange Agent in regards to the Escrow
Shares, and (iii) the applicable Milestone Date in regards to the Milestone
Consideration.
2.9 Maintenance of Letters of Transmittal. Letters of Transmittal, and
all accompanying documents, shall be stamped or have otherwise indicated by the
Exchange Agent as to the date of receipt thereof and shall be preserved by the
Exchange Agent for one (1) year and thereafter shall be delivered by the
Exchange Agent to Parent.
ARTICLE 3
3.1 Rights of the Exchange Agent. The Exchange Agent:
(a) shall not be obligated to take any legal action hereunder which
might in its judgment involve any expense or liability unless it shall have been
furnished with reasonable indemnity; provided, however, that the Exchange Agent
shall notify Parent promptly if the Exchange Agent has reason to believe or
becomes aware of any situation that requires legal action to protect the
interests of Parent;
(b) may rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter, telegram or other document or
security delivered to it and believed by it to be genuine and to have been
signed by the authorized party or parties, after examination of evidence that
properly establishes such authority;
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(c) may rely on and shall be protected in acting upon the written
instructions of the Chief Financial Officer of Parent;
(d) may consult counsel satisfactory to it, who may be counsel to
Parent, and the opinion of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion of such counsel; and
(e) shall perform or administer appropriate tax withholding and
reporting as required by applicable law.
3.2 Limitation of Liability and Indemnification. Except to the extent
arising out of the Exchange Agent's bad faith, gross negligence or willful
misconduct or as otherwise provided in this Agreement, Parent agrees to
indemnify and hold the Exchange Agent harmless against any loss, claim,
liability or expense (collectively, "Losses"), including, without limitation,
the costs and expenses of defending against such Losses, incurred, arising out
of or in connection with:
(a) the performance of its duties hereunder, or
(b) reliance by the Exchange Agent upon the information relating to
the Company Capital Stock furnished to the Exchange Agent by the Company;
provided, however, that, in any case in which there is a discrepancy between
such information and the information contained in the certificate or
certificates surrendered to the Exchange Agent by a former stockholder of the
Company for exchange under the terms hereof, the Exchange Agent shall have a
duty to inquire as to the reason for such discrepancy.
3.3 Notification for Indemnification; Litigation. Notwithstanding
anything in this Agreement to the contrary, Parent shall not be liable for
indemnification or otherwise for Losses with respect to any claims against the
Exchange Agent unless Parent shall be notified by the Exchange Agent in writing
of the written assertion of a claim against the Exchange Agent or of any other
action commenced against the Exchange Agent, promptly after the Exchange Agent
shall have received any such written assertion or shall have been served with a
summons in connection therewith. The Exchange Agent agrees that, without the
prior written consent of Parent (which consent will not be unreasonably
withheld), it will not settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding in respect of
which indemnification could be sought in accordance with the indemnification
provisions of this Agreement (whether or not the Exchange Agent or Parent, or
any of their respective directors, officers and controlling persons, is an
actual or potential party to such claim, action or proceeding). In the event
that the Exchange Agent becomes involved in any litigation ("Litigation") in
which an adverse result may give rise to Parent's obligation to indemnify
hereunder, the Exchange Agent will give prompt written notice to Parent of
Litigation, and Parent shall have the right at any time to participate in and
control the contest and defense of such Litigation at its own cost and expense,
including the cost and expense of attorneys' fees in connection therewith.
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3.4 Payment of Exchange Agent Fees. Parent agrees to pay the reasonable
and customary fees of the Exchange Agent for the services of the Exchange Agent
hereunder or in connection herewith as set forth on Exhibit D to this Agreement,
and to reimburse the Exchange Agent for all reasonable out-of-pocket expenses
incurred by it pursuant to or in connection with its services hereunder.
3.5 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. No party hereto may assign either this Agreement or any of
its rights, interests or obligations hereunder without the prior written
approval of the other parties.
3.6 Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the internal laws of the State of Delaware
(regardless of the laws that might otherwise govern under applicable principles
of conflicts of law).
3.7 Termination of Agreement. This Agreement shall terminate upon the
written agreement by all of the parties to this agreement.
3.8 Amendments; Waivers. Any provision of this Agreement may be amended
or waived if, and only if, such amendment or waiver is in writing and signed, in
the case of an amendment, by each of the parties hereto, or in the case of a
waiver, by the party against whom the waiver is to be effective.
3.9 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be made in writing and shall be deemed to
have been duly delivered and effective:
(a) on the date of delivery, if delivered personally;
(b) on the date of receipt if sent by reputable nationwide
overnight courier; or
(c) on the date of transmission, if sent by facsimile, telecopy,
telegraph, telex or other similar telegraphic communications equipment:
If to the Company or to Parent:
To: ATS Medical, Inc.
0000 Xxxxxxxxx Xxxx #000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx Xxxxxx
Vice President Marketing and Business Development
Fax: (000) 000-0000
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With a copy to:
Xxxxxxxxxxx Xxxxx & Xxxxxxxx LLP
3300 Plaza VII
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
or to such other address as the Company or Parent shall furnish to the other
parties hereto in writing in accordance with this subsection.
If to the Exchange Agent:
To: Xxxxx Fargo Bank, N.A.
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Attn:
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Fax:
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or to such other address as the Exchange Agent shall furnish to the other
parties hereto in writing in accordance with this subsection.
3.10 Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts and the signatures delivered by facsimile, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement shall become effective when
each party hereto shall have received a counterpart hereof signed by the other
parties hereto.
3.11 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, understandings and negotiations, both written and oral,
between the parties with respect to the subject matter of this Agreement.
Neither this Agreement nor any provision hereof is intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder.
3.12 Severability. If any provision of this Agreement, or the
application thereof to any person, place or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other Persons,
places and circumstances shall remain in full force and effect only if, after
excluding the portion deemed to be unenforceable, the remaining terms shall
provide for the consummation of the transactions contemplated hereby in
substantially the same manner as originally set forth at the later of the date
this Agreement was executed or last amended.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first above written.
PARENT: ATS MEDICAL, INC.
By:
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Name:
Title:
EXCHANGE AGENT: XXXXX FARGO BANK, N.A.
By:
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Name:
Title:
COMPANY: 3F THERAPEUTICS, INC.
By:
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Name:
Title:
SIGNATURE PAGE
EXCHANGE AGENT AGREEMENT
