EXHIBIT 4.8
SPECIAL ESCROW AGREEMENT
THIS SPECIAL ESCROW AGREEMENT (this "Escrow Agreement"), is made effective
as of April 14, 2006, and is entered into by and among ATS Medical, Inc., a
Minnesota corporation ("Parent"), 3F Therapeutics, Inc., a Delaware corporation
(the "Company"), Bioscience Investment Trust plc ("Bioscience"), Domain Partners
III, L.P. ("DP III LP"), DP III Associates, L.P. ("DP III Associates"), Domain
Partners IV, L.P. ("XX XX LP"), XX XX Associates, L.P. ("XX XX Associates"),
Domain Associates, L.L.C. ("DA LLC"), Fjordinvest, LLC ("Fjordinvest"), Xxxxxxx
Xxxxxxx, M.D. ("Xxxxxxx") (Bioscience, DP III LP, DP III Associates, XX XX LP,
XX XX Associates, DA LLC, Fjordinvest, and Xxxxxxx are collectively referred to
herein as the "3F Parties," each of whose name is set forth on Exhibit A and
each of whom agrees to deposit that number of shares of Parent Common Stock (as
defined below) set forth opposite its name on Exhibit A hereto) in accordance
with the terms and conditions of this Escrow Agreement, Xxxxx X. Xxxxx, an
individual resident of the state of _____ (the "3F Party Representative"), as
agent for the 3F Parties, and Xxxxx Fargo Bank, N.A., a national banking
association principally located in Minneapolis, Minnesota (the "Escrow Agent").
Parent, the Company, the 3F Party Representative, each of the 3F Parties are
sometimes together referred to herein as the "Parties" and each individually as
a "Party."
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of January
23, 2006, by and among Parent, Seabiscuit Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Parent ("Merger Subsidiary"), the
Company, and the Stockholder Representative (the "Merger Agreement"), Merger
Subsidiary will be merged with and into the Company (the "Merger") and each
share of the Company common stock, $0.001 par value (the "Company Common
Stock"), and the Company Preferred Stock (the Company Common Stock and the
Company Preferred Stock may be collectively referred to as the "Company Capital
Stock") issued and outstanding immediately prior to the Effective Time will be
converted into the right to receive that number of shares of the common stock of
Parent, $0.01 par value per shares (the "Parent Common Stock"), as is determined
in accordance with the terms and subject to the conditions of the Merger
Agreement;
WHEREAS, each of the Parties acknowledge that the existence of that certain
lawsuit encaptioned Xxxxxx X. Xxxxx v. Xxxxxxxx X. Xxxxxx, 3F Partners Limited
Partnership II, 3F Management II, LLC and 3F Therapeutics, Inc. filed January
19, 2006 in the U.S. District Court for the Southern District of New York (Case
Number 06 CV 0409) and any other litigation, lawsuit or proceeding brought
against the Company or Parent or any of their respective directors, officers,
employees, agents or affiliates arising from the allegations asserted in the
complaint relating to the aforementioned pending lawsuit (the "Abbey
Litigation") constitutes a breach of certain of the Company's representations
and warranties in the Merger Agreement;
WHEREAS, Parent requires additional security in connection with the
Company's breach of certain of the representations and warranties of the Merger
Agreement for any loss, damage, expense or liability suffered by Parent or the
Company (or their respective officers, directors,
employees, agents and affiliates) arising from or related to the Abbey
Litigation, and the 3F Parties, in the interest of facilitating the Merger,
agree to provide such additional security;
WHEREAS, the Parties agreed to enter into this Escrow Agreement and,
simultaneously upon at the Closing, deposit with the Escrow Agent certain of the
shares of the Parent Common Stock that the 3F Parties would otherwise have
received as Initial Merger Consideration under Section 2.1(b)(i) of the Merger
Agreement;
WHEREAS, the Parties agreed that Parent shall deposit the Escrow Shares (as
defined below) with the Escrow Agent to hold until instructed otherwise in
accordance with the terms hereof and the Escrow Shares and Distributions (as
defined below) related thereto shall be distributed only in accordance with the
terms of this Escrow Agreement; and
WHEREAS, the Parties and the Escrow Agent desire to more specifically set
forth their rights and obligations with respect to deposit of the Escrow Shares
and the Distributions related thereto and the distribution and release thereof
in order to satisfy claims or upon termination of this Agreement.
NOW, THEREFORE, in consideration of the premises and covenants contained
herein, and for other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Appointment of and Acceptance by the Escrow Agent. The Escrow Agent is
hereby appointed by the Parties as the Escrow Agent in accordance with the
instructions set forth herein. The Escrow Agent hereby accepts such appointment.
2. Establishment and Purpose of Escrow. On the Closing Date, in
consideration of the transactions contemplated by the Merger Agreement, and in
order to induce Parent to consummate the transactions contemplated by the Merger
Agreement, each 3F Party hereby directs Parent (and, to the extent necessary or
appropriate, the Exchange Agent under the Merger Agreement) to deposit that
number of shares of Parent Common Stock set forth opposite its name on Exhibit A
hereto (collectively, the "Escrow Shares"), which shares would otherwise have
been payable to each such 3F Party as Initial Merger Consideration under the
Merger Agreement, into escrow to be held in accordance with the terms and
conditions hereof. As so deposited, the Escrow Shares shall be referred to as
the "Deposited Shares" and shall also include any dividends, distributions,
income, property or other rights distributed (including, without limitation,
upon a stock split, stock dividend or other recapitalization of Parent) with
respect to or in exchange for, or otherwise attaching or related to, the
Deposited Shares (which have not been released from the escrow established by
this Escrow Agreement) (the "Distributions"). The Deposited Shares, together
with any Distributions (the Deposited Shares and Distributions, collectively,
the "Escrow Fund"), shall be held by the Escrow Agent, for the account of
Parent, in order to satisfy any loss, damage, expense or liability suffered by
Parent or the Company (or their respective officers, directors, employees,
agents and affiliates) arising from or related to the Abbey Litigation. The
Escrow Agent agrees to accept delivery of the Deposited Shares and Distributions
and to hold the Escrow Fund (Acct. # __________) in escrow subject to the terms
and conditions of this Escrow Agreement (the "Escrow Account"). No portion of
the Escrow Fund shall be subject to any consensual lien, attachment, trustee
process, or other
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judicial process of any kind whatsoever ("Encumbrance") of any creditor of
any of the Parties, and each Party who becomes aware of any Encumbrance shall
take all reasonable steps and actions, including without limitation payment of
any financial obligations, in order to fully release and satisfy the
Encumbrance.
3. Investment of Cash Distributions.
(a) The Escrow Agent shall be permitted to deposit, transfer, hold,
and invest any cash Distributions received by the Escrow Agent pursuant to this
Agreement in one or more Xxxxx Fargo Advantage Money Market Funds (the "Xxxxx
Fargo Advantage Funds") upon the completion by Parent of the Agency and Custody
Account Direction for Cash Balances, a form of which is attached hereto as
Appendix A. In the absence of written instructions from Parent, the Escrow Agent
is hereby directed to invest cash Distributions in the Xxxxx Fargo Advantage
100% Treasury Money Market Fund, Service Class Shares. The investments in the
Xxxxx Fargo Advantage Funds are not obligations of, or endorsed or guaranteed
by, the Escrow Agent or its affiliates and are not insured by the Federal
Deposit Insurance Corporation. All interest earned on invested funds, if any,
shall be distributed to the Escrow Agent for distribution to the 3F Parties or
to Parent, as the case may be, concurrently with the release of the related
shares held in the Escrow Fund.
(b) The Escrow Agent shall be entitled to sell or redeem any such
investments as is necessary to make any distributions required under this
Agreement. The Escrow Agent shall have no responsibility or liability for any
loss which may result from any investment made pursuant to this Agreement, or
for any loss resulting from the sale of such investment. The Parties acknowledge
that the Escrow Agent is not providing investment supervision, recommendations,
or advice.
4. Distributions, Voting, and Rights of Ownership regarding Deposited
Shares. Any Distributions with respect to the Deposited Shares will be issued or
distributed by Parent to the Escrow Fund as an additional contribution to the
Escrow Fund by Parent with such dividends or distributions retained by the
Escrow Agent pursuant to the terms of this Escrow Agreement. The Escrow Agent,
the 3F Party Representative, and the 3F Parties shall not have any rights to
vote the Deposited Shares and Distributions related thereto while such shares or
Distributions are held in escrow by the Escrow Agent. The 3F Parties disclaim
any right to such voting rights and agree not to attempt to exercise or claim a
right to exercise any such voting rights with respect to such Deposited Shares
and Distributions related thereto. Unless and until assigned and transferred to
the 3F Parties, or assigned and transferred to Parent, as the case may be, in
accordance with the provisions hereof, the Deposited Shares and Distributions
related thereto shall be registered in the name of Xxxxx Fargo Bank, N.A., in
its sole capacity as Escrow Agent. Except for distributions of the Deposited
Shares to Parent or to the 3F Parties as herein required, the Escrow Agent shall
not sell, transfer, pledge, assign, encumber, or otherwise attempt to dispose or
transfer any Deposited Shares and Distributions related thereto held pursuant to
this Escrow Agreement.
5. No Transfer of Deposited Shares. Except for transfers by operation of
law, each of the 3F Parties covenants and agrees that it shall not sell,
transfer, pledge, assign, mortgage, encumber, or permit any such encumbrance, or
otherwise attempt to dispose or transfer their any
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of the Deposited Shares or Distributions related thereto, any portion thereof,
or any interest therein, unless and until such Deposited Shares or Distributions
related thereto, portion thereof, or interest therein is delivered by the Escrow
Agent to a 3F Party pursuant to the terms of this Escrow Agreement. No 3F Party
shall allow the Deposited Shares or Distributions related thereto, a portion
thereof, or any interest therein to be taken or reached by any legal or
equitable process in satisfaction of any debt or other liability of any of that
party, unless and until such Deposited Shares or property related thereto,
portion thereof, or interest therein is delivered to that 3F Party pursuant to
the terms of this Escrow Agreement. Any purported transfer in violation of any
of the foregoing restrictions in this Section 5 shall be null, void and of no
force or effect and the Escrow Agent shall not recognize any request for such
purported transfer, unless such transfer was by operation of law.
6. Procedure for Making Claims Against the Deposited Shares. Parent may
make a claim pursuant to the terms of this Escrow Agreement, either on behalf of
itself or on behalf of the Company, by delivering to the 3F Party Representative
with a copy provided to the Escrow Agent, a written notice (a "Claim Notice"),
of one or more claims for loss, damage, expense, judgment, order or liability
(net of any such claims actually covered by proceeds received by Parent or the
Company under any applicable 3F Therapeutics' director and officer insurance
policy) ("Losses") suffered by Parent or the Company (or their respective
officers, directors, employees, agents and affiliates) arising from or related
to the Abbey Litigation (each such claim, a "Claim") against the Deposited
Shares or Distributions related thereto, until twenty (20) days after the
earlier to occur of: (a) the dismissal, with prejudice, of the Abbey Litigation
with respect to both the Company and Xxxxxxxx X. Xxxxxx, or (b) the (i)
dismissal of both 3F Therapeutics and Xx. Xxxxxx, which dismissal is without
prejudice with respect to one or both of them, from the Abbey matter, and (ii)
the statute of limitations has expired on all of the claims alleged in the
complaint relating to the Abbey matter (such date, the "Cut-Off Date");
provided, that Parent is provided with reasonable written evidence confirming
the occurrence each such event. In its sole discretion, Parent may make Claims
under this Agreement regardless of whether it has already asserted, or may
assert, a Claim under the other escrow agreement required by the Merger
Agreement. Parent agrees that it will not seek to recover its Losses in a Claim
under this Escrow Agreement for fees and expenses of additional legal counsel to
defend the Company and/or Parent in the Abbey Litigation; provided, however,
that Parent reserves its right to do so under the escrow agreement required by
and referenced in the Merger Agreement. It is expressly agreed and understood
that if a Claim Notice has been timely made, but the insurance coverage as to
the Claim is unresolved (whether the insurance coverage is unresolved because of
a reservation of rights by the insurance company, or because of a dispute
concerning the existence of an exclusion or for any other reason), then the
Claim shall be deemed unresolved and the Deposited Shares shall remain in escrow
subject to the terms and conditions of this Escrow Agreement. The Parties agree
that if the Abbey Litigation is dismissed with prejudice with respect to the
Company, but the other conditions to the Cut-Off Date as set forth in this
Section 6 are not satisfied (so that a Cut-Off Date has not occurred) by the
date that is eighteen (18) months after the Closing Date, then either Parent or
the 3F Party Representative may send a written notice to the other Parties
hereto requesting that the Parties meet to discuss, in good faith, whether the
number of Deposited Shares should be reduced in light of the current facts and
circumstances relating to the Abbey Litigation and any changes thereto between
the date of this Escrow Agreement and the Closing Date, and the resulting impact
of such changes (if any) on the risk of loss to Parent or the Company (and their
respective officers, directors, employees,
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agents and affiliates). If the parties are unable to agree on whether an
adjustment is appropriate, or, if an adjustment is deemed appropriate by the
Parent and the 3F Party Representative, on the number of shares of ATS common
stock to be included in such adjustment, then the Parties agree to resolve any
such disagreements in accordance with the procedures set forth in Article 10 of
the Merger Agreement.
7. Disputed Claims. Within twenty (20) days of the 3F Party Representative
receiving a Claim Notice, the 3F Party Representative may dispute or object to
any Claim, in whole or in part, by delivering to the Escrow Agent a copy of
Parent's Claim Notice and a written notice of objection (an "Objection Notice")
stating:
(a) that the 3F Parties dispute or object to such Claim;
(b) that the 3F Parties have delivered a copy of the Objection Notice
to Parent and the date on which such copy was delivered;
(c) the portion of the Claim set forth in the Claim Notice, if any,
that is not disputed or objected to; and
(d) that the Objection Notice is made in a timely manner in accordance
with this Escrow Agreement.
If an Objection Notice is not delivered in a timely manner in accordance
with this Section 7, the 3F Party Representative shall be deemed to have given
its consent to the entire amount of the Claim. In that case, both Parent and the
3F Party Representative authorize the Escrow Agent to release promptly to Parent
the number of Deposited Shares required to satisfy the Claim. The number of
Deposited Shares to be released shall be calculated in accordance with Section 8
herein.
Parent and the 3F Party Representative agree that all disputed Claims shall
be resolved in accordance with the procedures set forth in Article 10 of the
Merger Agreement.
8. Payment of Claims. If the Escrow Agent receives from the 3F Party
Representative written notice of consent or agreement to all or part of a Claim,
or receives notice of a Final Decision (as defined below) in favor of Parent,
the Escrow Agent shall thereupon promptly deliver to Parent from the Deposited
Shares a number of Deposited Shares having a value equal to the aggregate amount
of such Claim as specified in such written notice of consent or agreement from
the 3F Party Representative or in the Final Decision, as the case may be, such
value to be determined as hereinafter prescribed. If the Deposited Shares are
not sufficient to satisfy in full such Claim (as consented or agreed to the 3F
Party Representative or as finally determined by a Final Decision), the Escrow
Agent shall deliver to Parent such Deposited Shares as are available and satisfy
the remainder of such Claim from Distributions to the extent of such
Distributions. Claims satisfied by payment in the form of Deposited Shares shall
be satisfied by returning to Parent from the Deposited Shares the number of
whole shares of Parent Common Stock equal to the quotient of the aggregate
Claim(s) being so satisfied divided by the Average Market Price (as defined
below), so adjusted, if appropriate, in the event that there occurs any stock
dividend, stock split, or similar event with respect to the Parent Common Stock
after the Effective Time. "Average Market Price" means with respect to Deposited
Shares, the average of the closing sale price (such closing price as reported by
The NASDAQ Stock Market at the end of regular trading) of one share of Parent
Common Stock on the NASDAQ National Market
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System (or such other national securities trading system as Parent Common Stock
is approved and listed for trading) on each of the 60 trading days ending on
(and including) the Escrow Distribution Date (as defined below). Such Average
Market Price and the number of Deposited Shares to satisfy such Claim shall be
provided in writing to the Escrow Agent by Parent and the 3F Party
Representative, which notice shall be provided promptly following consent or
agreement by the 3F Party Representative of the Claim or the Final Decision, as
the case may be.
9. Distribution of Escrow Fund to the 3F Parties. Within 30 days of the
Cut-Off Date, which date shall be provided in writing to the Escrow Agent by
Parent, the Escrow Agent shall, after taking the actions described in this
Section 9, remit the balance of the Escrow Fund (excluding any shares that are
returned, or required to be returned, back to Parent pursuant to the terms of
this Escrow Agreement) then remaining, less that number of shares equal to the
quotient obtained by dividing all Losses incurred by 3F Therapeutics related to
or arising from the Abbey Litigation, if any, by the Average Market Price (so
adjusted, if appropriate, in the event that there occurs any stock dividend,
stock split, or similar event with respect to the Parent Common Stock after the
Effective Time, if any) to the 3F Parties, with the number of shares to be
remitted to each 3F Party to be determined by multiplying the such number of
remaining Deposited Shares by the Percentage Interest set forth opposite its
name on Exhibit A hereto (the date of such distribution, the "Escrow
Distribution Date"). In addition, prior to such proposed distribution to the 3F
Parties, the Escrow Agent shall notify Parent and the 3F Party Representative of
the pending distribution(s) and the proposed number of Deposited Shares to be
remitted to the 3F Parties. In the event that there exists as of the date of the
proposed distribution any Claim that has not been satisfied or resolved in full
or if Parent has provided written notice to the Escrow Agent and to the 3F Party
Representative that states the reasons why the Escrow Agent should not
distribute all or any portion of the Escrow Fund to the 3F Parties, Parent and
the 3F Party Representative shall endeavor in good faith to determine a
reasonable estimate of the maximum amount of such Claim and shall jointly
instruct the Escrow Agent to deliver any excess amount in the Escrow Fund to the
3F Parties in accordance with this Section 9. The Escrow Agent shall continue to
hold such portion of the Escrow Fund in dispute until the Escrow Agent receives
written instructions signed by each of Parent and the 3F Party Representative
directing the Escrow Agent to deliver the Escrow Fund (or any portion thereof)
or until there is a Final Decision (as hereinafter defined) with respect to a
disputed Claim directing delivery of the Escrow Fund (or any portion thereof),
in which case the Escrow Agent shall deliver the Escrow Fund (or such portion
thereof) in accordance with the Final Decision. "Final Decision" means a
decision, order, judgment or decree of an arbitrator or court having
jurisdiction that is either not subject to appeal or as to which notice of
appeal has not been timely filed or served. For the purpose of clarity, the
Escrow Agent is not required to calculate the Average Market Price or the
number of aggregate Deposited Shares to be distributed pursuant to this
Section 9.
10. Duration of Escrow. The Escrow Agent shall hold all Deposited Shares
and other property constituting a part thereof until the Deposited Shares or
other property constituting a part thereof that corresponds to the
Distribution(s) are delivered to the 3F Parties or to Parent, as the case may
be, pursuant to the terms of this Escrow Agreement.
11. Termination. This Escrow Agreement shall terminate as follows:
(a) After the Escrow Distribution Date, provided that there are no
claims then pending against the Deposited Shares and Distributions related
thereto that were made by proper delivery of a Notice of Claim on or prior to
such date, in which event the Escrow Agent shall
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promptly thereafter deliver any remaining Deposited Shares and Distributions
related thereto to the 3F Parties in accordance with Section 9; or
(b) Upon Final Resolution of any claims of Parent that are pending
against the Deposited Shares and Distributions related thereto on the Escrow
Distribution Date, provided that such claims were made by proper delivery of
Notices of Claims on or before the Escrow Distribution Date, in which event the
remaining Deposited Shares and Distributions related thereto shall be
distributed by the Escrow Agent to the 3F Parties; or
(c) Upon the mutual written agreement to terminate this Escrow
Agreement executed by Parent and the 3F Party Representative.
12. Authority of Escrow Agent. Parent and the 3F Parties, by execution and
delivery of this Escrow Agreement, constitute and appoint the Escrow Agent as
Parent's and the 3F Parties' true and lawful agent and attorney-in-fact to
assign and transfer the Deposited Shares and Distributions related thereto for
Parent and the 3F Parties, respectively, and in the name, place and stead of
Parent and the 3F Parties, respectively, as fully and to all the same extent as
Parent or the 3F Parties, respectively, could do on their own behalf, as shall
from time to time be required in accordance with the provisions of this Escrow
Agreement. In furtherance of the foregoing and not in limitation thereof, the
Escrow Agent is specifically authorized to forward any of the Deposited Shares
or Distributions or any other property constituting a part of the Deposited
Shares pursuant to this Escrow Agreement to (i) Parent as may be necessary to
accomplish the intent and purposes of this Escrow Agreement, or (ii) provided
Parent has no outstanding claims for indemnification, to the 3F Parties in
accordance with Section 9. Such authority of the Escrow Agent shall not be
affected by the subsequent bankruptcy, insolvency, death, disability or
incompetence of Parent or any 3F Party.
13. Successors, General Duties, Reporting, Liability, Resignation, Removal
and Indemnification of Escrow Agent.
(a) Any corporation into which the Escrow Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Escrow Agent will be a
party, or any corporation to which substantially all the corporate trust
business of the Escrow Agent may be transferred, shall be the Escrow Agent under
this Escrow Agreement without further act.
(b) The duties and responsibilities of the Escrow Agent shall be
limited to those expressly set forth in this Escrow Agreement, and the Escrow
Agent shall not be obligated to recognize any other agreement between any of the
parties hereto, including the Merger Agreement, even though reference thereto
may be made herein and whether or not the Escrow Agent has knowledge thereof.
All references in this Escrow Agreement to any other agreement are for the
convenience of the parties hereto other than the Escrow Agent, and the Escrow
Agent has no duties or obligations with respect thereto. The Escrow Agent will
hold and administer the Deposited Shares, together with all Distributions
related thereto, in accordance with the provisions of this Escrow Agreement.
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(c) Each quarter during the term of this Escrow Agreement, the Escrow
Agent shall prepare and send to Parent and the 3F Party Representative a report
describing in reasonable detail a summary of receipts and disbursements from the
Escrow Account. The Escrow Agent will maintain complete and accurate records
concerning all receipts and distributions to and from the Escrow Account,
including, but not limited to, the date and amount of each distribution made to
Parent or to the 3F Parties. The Escrow Agent will be deemed in compliance with
this Section 13(c) if it maintains copies of all reports delivered from time to
time pursuant to this Section 13(c). In the event that the Escrow Agent seeks
indemnification pursuant to the terms of this Agreement, the Escrow Agent shall,
in addition to the report required pursuant to this Section 13(c), prepare and
send to Parent and the 3F Party Representative on a monthly basis a detailed
summary of the Escrow Agent's fees and expenses, which shall include legal fees
and expenses.
(d) The Escrow Agent shall not be personally liable for any action
taken or omitted to be taken hereunder if taken or omitted to be taken by the
Escrow Agent in good faith or in the exercise by the Escrow Agent of its own
best judgment unless it acts grossly negligent or with willful misconduct. The
Escrow Agent shall also be fully protected in relying upon any written notice,
demand, certificate or document that the Escrow Agent in good faith believes to
be genuine unless it is grossly negligent or acts with willful misconduct.
(e) Provided it acts in the absence of gross negligence, bad faith,
and willful misconduct; the Escrow Agent shall not be responsible for the
sufficiency or accuracy of the form, execution, validity or genuineness of
notices, documents or securities now or hereafter deposited or delivered under
this Escrow Agreement, or of any endorsement thereof, or for any lack of
endorsement thereof, or for any description therein, nor shall the Escrow Agent
be responsible or liable in any respect on account of the identity, authority or
rights of the persons executing or delivering or purporting to execute or
deliver this Escrow Agreement or any such document, notice, security or
endorsement.
(f) The Escrow Agent may resign upon 60 days' advance written notice
to the Parties hereto or be removed by the mutual consent of Parent and the 3F
Party Representative. No resignation or removal of the Escrow Agent and no
appointment of a successor Escrow Agent, however, shall be effective until the
acceptance of appointment by the successor Escrow Agent in the manner herein
provided. In the event of the resignation or removal of the Escrow Agent, Parent
and the 3F Party Representative shall agree upon a successor Escrow Agent. Any
successor Escrow Agent shall execute and deliver to the predecessor Escrow
Agent, Parent and the 3F Party Representative an instrument accepting such
appointment and the transfer of the Deposited Shares, together with
Distributions related thereto, and agreeing to the terms of this Escrow
Agreement, and thereupon such successor Escrow Agent shall, without further act,
become vested with all the estates, properties, rights, powers and duties of the
predecessor Escrow Agent as if originally named herein. In the event Parent and
the 3F Party Representative are unable to agree upon a successor Escrow Agent
within 20 days of the creation of the vacancy, Parent and the 3F Party
Representative shall submit the dispute for arbitration as provided in the
Merger Agreement and the arbitrator shall select a successor Escrow Agent within
60 days of such arbitrator's appointment.
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(g) Parent and the 3F Parties, jointly and severally, hereby indemnify
and hold harmless the Escrow Agent from and against any and all loss, liability,
cost, damage and expense, including, without limitation, reasonable counsel
fees, which the Escrow Agent may suffer or incur by reason of any action, claim
or proceeding brought against the Escrow Agent arising out of or relating in any
way to this Escrow Agreement or any transaction to which this Escrow Agreement
relates unless such action, claim or proceeding is the result of the willful
misconduct or gross negligence of the Escrow Agent. The Escrow Agent may consult
counsel in respect of any question arising under this Escrow Agreement and the
Escrow Agent shall not be liable for any actions taken or omitted in good faith
upon advice of such counsel.
14. Escrow Agent's Fee. The Escrow Agent shall be entitled to compensation
for its services as stated in the fee exhibit attached hereto as Exhibit B. The
Escrow Agent shall send a copy of each invoice to both Parent and the 3F Party
Representative. Each of Parent and the Company shall pay one half of such
compensation in cash upon receipt of the Escrow Agent's invoice, it being
understood and agreed that the Company shall include all such compensation as
expenses to be reflected on the Actual Operating Budget reviewed prior to
Closing pursuant to the relevant terms of the Merger Agreement. The fee agreed
upon for the services rendered hereunder is intended as full compensation for
the Escrow Agent's services as contemplated by this Escrow Agreement; provided,
however, that in the event that the Escrow Agent renders any material service
not contemplated in this Escrow Agreement, or there is any assignment of
interest in the subject matter of this Escrow Agreement, or any material
modification hereof, of if any material controversy arises hereunder, or the
Escrow Agent is made a party to any litigation pertaining to this Escrow
Agreement, or the subject matter hereof, then the Escrow Agent shall be
reasonably compensated for such extraordinary services and reimbursed for all
costs and expenses, including reasonable attorney's fees (the "Extraordinary
Expenses"), occasioned by any delay, controversy, litigation or event. The
Escrow Agent may recover such Extraordinary Expenses from either Parent or the
Stockholder Representative. The Parties agree, that amongst themselves, the
Extraordinary Expenses shall be apportioned one-half (1/2) to Parent and
one-half (1/2) to the shares deposited or to be deposited in the escrow account
established pursuant to the escrow agreement required by Section 2.2 of the
Merger Agreement upon receipt of the Escrow Agent's invoice by each Party.
15. Representations and Warranties of each 3F Party. As a material
inducement to Parent to enter into this Escrow Agreement, with the understanding
that Parent will be relying thereon in consummating the Merger and this Escrow
Agreement, each 3F Party hereby represents and warrants to Parent that the
statements contained in this Section 15 are true and correct as of the date of
this Escrow Agreement.
(a) Such party has all requisite power and authority to enter into
this Escrow Agreement. All actions required to be taken by law or by any
agreement, will have been taken to duly and validly authorize and approve the
execution, delivery, and performance by such party of this Escrow Agreement and
no other actions on the part of such party, or any subsidiary or affiliate of
such party are, or will be necessary to authorize this Escrow Agreement.
(b) Neither the execution, delivery, or performance by such party of
this Escrow Agreement will contravene or conflict with the charter documents or
bylaws of such party or contravene or conflict with or constitute a violation of
any provision of any law binding upon or applicable to such party.
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(c) No consent, approval, authorization of or from, or registration,
notification, declaration, or filing with (hereinafter referred to as a
"Consent" and sometimes collectively as "Consents") any individual or entity is
required in connection with the execution, delivery, or performance of this
Escrow Agreement by such party.
(d) Such party will not seek any contribution or indemnification from
any Company stockholder for any liability that such party may suffer that arises
out of the Abbey Litigation or this Escrow Agreement.
16. Fractional Shares. Notwithstanding any other provision of this Escrow
Agreement to the contrary, no certificates representing fractional shares of
Parent Common Stock shall be conveyed to the 3F Parties upon distribution from
the Escrow Fund. In lieu of any fractional shares of Parent Common Stock to
which any 3F Party may be entitled, Parent shall pay to such 3F Party an amount
of cash (without interest) determined by multiplying the fair market value of
one share of Parent Common Stock on the Escrow Distribution Date by the
fractional share interest to which such 3F Party would otherwise be entitled.
Parent will make available to the Escrow Agent all cash necessary for this
purpose, and the Escrow Agent shall have no other duties under this Section 16
other than to distribute the cash provided to Escrow Agent by Parent to each 3F
Party in accordance with such 3F Party's percentage interest as noted on the
attached Exhibit A. If Parent becomes entitled to receive from each 3F Party any
fraction of a share of Parent Common Stock from any 3F Party pursuant hereto,
then Parent will receive the next higher whole number of shares and pay to such
3F Party an amount of cash (without interest) determined by multiplying the
Average Market Price by the fractional share interest received by Parent as a
result of the rounding up of the shares transferred by the 3F Party.
17. Additional Agreements and Acknowledgements. The Parties hereby
acknowledge and agree that:
(a) the existence of the Abbey Litigation constitutes a breach of
certain of the Company's representations and warranties under the Merger
Agreement such that any loss, liability, cost, damage and expense incurred by
Parent following the Closing in connection with the Abbey Litigation complaint
will not be subject to the Basket Amount but will be indemnified in full; and
(b) nothing contained in this Escrow Agreement shall limit or
otherwise affect Parent's or Merger Subsidiary's rights under the Merger
Agreement or any agreements entered into in connection therewith, including
without limitation Parent's right to seek indemnification by making a claim
against, at Parent's sole discretion, the Deposited Shares hereunder, the
900,000 shares of Parent Common Stock placed in escrow pursuant to the Merger
Agreement or any Milestone Consideration, Set-Off Shares, or any combination
thereof, to satisfy any Claim.
18. Notice Provisions. 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
10
(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 or Merger Subsidiary:
To: ATS Medical, Inc.
0000 Xxxxxxxxx Xxxx #000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx Xxxxxx, Vice President Marketing and Business
Development
Fax: (000) 000-0000
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, Parent or Merger Subsidiary shall
furnish to the other parties hereto in writing in accordance with this
subsection.
If to a 3F Party:
To: Xxxxx X. Xxxxx
Domain Associates, L.L.C.
Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
or to such other address as the 3F Party Representative shall furnish to the
other parties hereto in writing in accordance with this subsection.
If to the Escrow Agent:
Xxxxx Fargo Bank, N.A.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx Xxxxx
Fax: (000) 000-0000
or to such other address as the Escrow Agent shall furnish to the other parties
hereto in writing in accordance with this subsection.
19. Appointment of 3F Party Representative.
(a) By executing this Escrow Agreement, the 3F Parties hereby
irrevocably constitute and appoint Xxxxx X. Xxxxx as the 3F Party
Representative, for the purpose of taking all
11
such actions and executing all such documents required to be taken by the 3F
Parties, and performing and consummating the transactions, on behalf of each 3F
Party, contemplated by this Escrow Agreement. By executing this Escrow
Agreement, the 3F Party Representative hereby accepts such appointment without
compensation for services in this capacity. The appointment of such 3F Party
Representative is coupled with an interest and all authority hereby conferred
shall be irrevocable and such 3F Party Representative is hereby authorized and
directed to perform and consummate all of the transactions contemplated by this
Escrow Agreement. Not by way of limiting the authority of the 3F Party
Representative, each and all of the 3F Parties, by their execution of this
Escrow Agreement, for themselves and their respective heirs, executors,
administrators, successors and assigns hereby authorize the 3F Party
Representative to:
(i) effect any amendment to this Escrow Agreement which the 3F
Party Representative deems necessary or desirable;
(ii) execute and deliver on their behalf all documents and
instruments which may be executed and delivered pursuant to this Escrow
Agreement;
(iii) make and receive notices and other communications pursuant
to this Escrow Agreement and service of process in any legal action or other
proceeding arising out of or related to this Escrow Agreement or any of the
transactions hereunder;
(iv) settle any dispute, claim, action, suit or proceeding
arising out of or related to this Escrow Agreement or any of the transactions
hereunder;
(v) receive the Escrow Shares and distribute the Deposited
Shares;
(vi) appoint or provide for successor agents; and
(vii) pay expenses incurred or which may be incurred by or on
behalf of the 3F Parties (and to be reimbursed by the 3F Parties for their pro
rata share of such expenses in any manner as may be agreed to among the 3F
Parties and the 3F Party Representative) in connection with this Escrow
Agreement.
(b) In the event of the death or disability of the 3F Party
Representative, the holders of a majority in interest of the Deposited Shares
shall promptly appoint a replacement. No person serving as the 3F Party
Representative under this Escrow Agreement shall have any personal liability to
any 3F Party or its permitted assigns with respect to any action taken, suffered
or omitted by him hereunder as a 3F Party Representative while acting in good
faith and in the absence of gross negligence or willful misconduct, and any act
done, suffered or omitted pursuant to the advice of counsel shall be deemed
hereunder to have been done in good faith, except to the extent that such person
may have liability as a 3F Party hereunder. The 3F Parties shall severally and
not jointly indemnify the 3F Party Representative and hold him harmless against
any loss, liability or expense incurred without bad faith or gross negligence on
the part of the 3F Party Representative and arising out of or in connection with
the acceptance or administration of their duties hereunder.
(c) Any claim, action, suit, or other proceeding, whether in law or
equity, to enforce any right, benefit or remedy granted to 3F Parties under this
Escrow Agreement shall be
12
asserted, brought, prosecuted or maintained only by the 3F Party Representative.
With respect to any matter contemplated by this Section 19, the 3F Parties shall
be bound by any determination in favor of or against the 3F Party Representative
or the terms of any settlement or release to which the 3F Party Representative
shall become a party.
(d) Any notice given the 3F Party Representative will constitute
notice to each and all of the 3F Parties at the time the notice is given to the
3F Party Representative. Any action taken by, or instruction received from, the
3F Party Representative will be deemed to be action by, or notice or instruction
from, each and all of the 3F Parties. Parent may, and the Escrow Agent will,
disregard any notice or instruction received directly from any 3F Party other
than the 3F Party Representative.
(e) At any time during the term of this Escrow Agreement, holders of a
majority in interest of the Deposited Shares may remove and replace the 3F Party
Representative by sending notice and a copy of the written consent appointing
such new individual or individuals signed by holders of a majority in interest
of the Deposited Shares to Parent and the Escrow Agent.
20. Tax Information.
(a) Each of the Parties will complete and return to the Escrow Agent
any and all tax forms or reports required to be maintained or obtained by the
Escrow Agent in connection with its administration of this Escrow Agreement. The
Parties agree that, for tax reporting purposes, all interest or other income
from the investment of cash Distributions shall, as of the end of each calendar
year, be reported as having been earned by Parent.
(b) With respect to the disbursement of any Distributions or Deposited
Shares pursuant to this Escrow Agreement, the 3F Party Representative shall be
responsible for determining any tax reporting and withholding relating to any
such disbursement to a 3F Party. Parent shall be responsible for determining any
tax reporting and withholding relating to any such disbursement to Parent. The
3F Party Representative or Parent, as the case may be, shall instruct the Escrow
Agent with respect to any and all tax reporting and withholding by (i)
specifying in writing the amount of any withholding prior to any disbursement,
(ii) instructing the Escrow Agent in writing as to the specific version of the
tax form to be distributed, (iii) furnishing any information required in such
tax reporting forms that the Escrow Agent may reasonably request, and (iv)
furnishing any guidance or direction in writing as may be reasonably requested
by the Escrow Agent. The Escrow Agent will, in accordance with written
instruction given in accordance with this Section 20, print and mail tax
reporting forms to persons receiving distributions pursuant to this Escrow
Agreement and transmit withholding amounts in accordance with its standard
policies and procedures. The Escrow Agent shall not be considered the payor with
respect to any payments made under this Agreement, and the Parties acknowledge
that the Escrow Agent is not in a position to characterize the nature of the
payment made to recipients for tax purposes. The Escrow Agent further shall not
be considered the payor with respect to any payments made to any non-resident
aliens and, accordingly, is not the "withholding agent" for purposes of any such
payments as that term is defined under the regulations of the Internal Revenue
Service ("IRS"). Any tax certifications received as a result of solicitations
made by the Escrow Agent at the request of any Party will be forwarded to such
Party for its review and analysis. The Escrow Agent shall not have any liability
for any withholding, interest, or penalties assessed by the IRS due to a failure
to withhold or report the proper amount of tax.
13
21. General.
(a) Execution in Counterparts. This Escrow Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same document.
(b) Waivers. No waiver of any term, covenant or condition of this
Escrow Agreement shall be effective unless made in a written instrument duly
executed by or on behalf of the party against whom the waiver is to be
effective.
(c) Amendments. The parties may agree to the amendment or modification
of Section 17(a) of this Escrow Agreement by an agreement in writing executed in
the same manner as this Escrow Agreement. The parties may agree to the amendment
or modification of any section other than Section 17(a) of this Escrow Agreement
by an agreement in writing executed by Parent, the 3F Party Representative and
the Escrow Agent.
(d) Assignment. This Escrow Agreement may not be assigned by any of
the parties hereto except pursuant to written consent of each of the parties
hereto, which shall include the Escrow Agent.
(e) Binding Effect. This Escrow Agreement shall be binding upon the
successors and assigns of the parties hereto.
(f) Governing Law. This Escrow Agreement and the legal relations among
the parties hereto shall be governed by and construed in accordance with the
internal substantive laws of the State of Delaware (without regard to the laws
of conflict that might otherwise apply) as to all matters, including, without
limitations, matters of validity, construction, effect, performance and
remedies.
(g) Captions. The captions of this Escrow Agreement are for
convenience of reference only and shall not affect in any manner any of the
terms, covenants or conditions hereof.
(h) Definitions. Capitalized terms used in this Escrow Agreement but
not defined herein shall have the meanings ascribed thereto in the Merger
Agreement.
(i) Injunctive Relief. It is expressly agreed among the parties hereto
that monetary damages would be inadequate to compensate a party hereto for any
breach by any other party of its covenants and agreements herein. Accordingly,
the parties agree and acknowledge that any such violation or threatened
violation will cause irreparable injury to the others and that, in addition to
any other remedies which may be available, such party will be entitled to
injunctive relief against the threatened breach hereof or the continuation of
any such breach without the necessity of proving actual damages and may seek to
specifically enforce the terms hereof.
[Remainder of Page Intentionally Left Blank]
14
IN WITNESS WHEREOF, the parties have executed and delivered this Escrow
Agreement as of the day and year first above written.
PARENT: ATS MEDICAL, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
COMPANY: 3F THERAPEUTICS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ESCROW AGENT: XXXXX FARGO BANK, N.A.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
3F PARTY REPRESENTATIVE:
----------------------------------------
Xxxxx X. Xxxxx
(Signature Page to Special Escrow Agreement)
3F PARTIES:
----------------------------------------
Xxxxxxx Xxxxxxx, M.D.
BIOSCIENCE INVESTMENT TRUST PLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
FJORDINVEST, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
(3F Signature Page to Special Escrow Agreement)
16
DOMAIN ENTITIES:
DOMAIN PARTNERS III, L.P.
By:
------------------------------------
[name]
DP III ASSOCIATES, L.P.
By:
------------------------------------
[name]
DOMAIN PARTNERS IV, L.P.
By:
------------------------------------
[name]
XX XX ASSOCIATES, L.P.
By:
------------------------------------
[name]
DOMAIN ASSOCIATES, L.L.C.
By:
------------------------------------
[name]
(Domain Entities Signature Page to Special Escrow Agreement)
17
EXHIBIT A
ESCROW SHARES AND PERCENTAGE INTEREST
NUMBER OF SHARES OF ATS PERCENTAGE
3F PARTY COMMON STOCK TO DEPOSIT INTEREST
-------- ----------------------- ----------
Bioscience Investment Trust plc 63,980
Fjordinvest, LLC 28,610
Xxxxxxx Xxxxxxx, M.D. 28,610
Domain Entities:
Domain Partners III, L.P. 22,679
DP III Associates, L.P. 216
Domain Partners, IV, L.P. 150,488
XX XX Associates, L.P. 2,110
Domain Associates, L.L.C. 3,307
DOMAIN TOTAL: 178,800
------- ---
GRAND TOTAL: 300,000 100%
======= ===
EXHIBIT B
FEES OF THE ESCROW AGENT
[TO BE ATTACHED]
APPENDIX A
FORM OF AGENCY AND CUSTODY ACCOUNT DIRECTION FOR CASH BALANCES
Direction to use Xxxxx Fargo Advantage Funds for Cash Balances in the following
account(s):
Account Names:
Account Number(s):
You are hereby directed to invest, as indicated below or as I shall direct
further from time to time, all cash in the Account in the following money market
portfolio of Xxxxx Fargo Advantage Funds (the "Fund") or another permitted
investment of my choice (Check One):
[ ] Xxxxx Fargo Advantage Funds, Cash Investment Money Market Fund
[ ] Xxxxx Fargo Advantage Funds, Treasury Plus Money Market Fund
[ ] Xxxxx Fargo Advantage Funds, 100% Treasury Money Market Fund
[ ] Xxxxx Fargo Advantage Funds, Government Money Market Fund
[ ] Xxxxx Fargo Advantage Funds, National Tax-Free Money Market Fund
I acknowledge that I have received, at my request, and reviewed the Fund's
prospectus and have determined that the Fund is an appropriate investment for
the Account.
I understand from reading the Fund's prospectus that Xxxxx Fargo Funds
Management, LLC, ("Xxxxx Fargo Bank") a wholly-owned subsidiary of Xxxxx Fargo &
Company provides investment advisory and other administrative services for the
Xxxxx Fargo Advantage Funds. Other affiliates of Xxxxx Fargo & Company provide
sub-advisory and other services for the Funds. Boston Financial Data Services
serves as transfer agent for the Funds. The Funds are distributed by Xxxxxxxx
Inc., Member NYSE/SIPC. Xxxxx Fargo & Company and its affiliates are not
affiliated with Xxxxxxxx Inc. I also understand that Xxxxx Fargo & Company will
be paid, and its bank affiliates may be paid, fees for services to the Funds and
that those fees may include Processing Organization fees as described in the
Fund's prospectus.
I understand that you will not exclude amounts invested in the Fund from Account
assets subject to fees under the Account agreement between us.
I understand that investments in the Fund are not obligations of, or endorsed or
guaranteed by, Xxxxx Fargo Bank or its affiliates and are not insured by the
Federal Deposit Insurance Corporation.
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I acknowledge that I have full power to direct investments of the Account.
I understand that I may change this direction at any time and that it shall
continue in effect until revoked or modified by me by written notice to you.
I understand that if I choose to communicate this investment direction solely
via facsimile, then the investment direction will be understood to be
enforceable and binding.
----------------------------------
Signature
----------------------------------
Date
21
