Exhibit 10.09
AGREEMENT
---------
THIS AGREEMENT, dated as of the 3rd day of January, 2OO0~ between and among
Xxxx X. Xxxxxx, in his capacity as Escrow Agent ("Escrow Agent"); Sparta
Surgical Corporation, a Delaware corporation ("Sparta"); and Xxxxx Xxxxxx & Co.
("RWC").
WITNESSETH THAT:
WHEREAS, Sparta has previously issued to RWC a total of 98,500 shares of
common stock of Sparta (the "Shares"), which Shares have been issued as
consideration for certain financial consulting services provided to Sparta by
RWC, including, but not limited to, RWC's assistance in the (i) securing of
certain) financing, and (ii) development and marketing of Sparta's product line
in countries outside the United States;
WHEREAS, the Shares have been and are presently being held by Escrow Agent
for the benefit of RWC; and
WHEREAS, the parties now desire to clarify and confirm in writing their
understanding as to the release of the Shares by Escrow Agent to RWC.
NOW, THEREFORE, in consideration of the mutual undertakings contained
herein and previously performed, including those financial consulting services
referred to above, the parties hereto, intending to he legally bound, agree as
follows:
1. Escrow Agent acknowledges having possession of the Shares, and that the
Shares arc being held in escrow on RWC's behalf.
2. The Shares shall continue to be held in escrow until such time as any
one (1) or more of the following conditions (each such condition being
hereinafter referred to as a "Condition," and such conditions being collectively
referred to as "Conditions") shall occur:
(a) The Shares have achieved a fair market value of $7.00 per share;
(b) if (1) an order is entered for relief against Sparta, or
declaring that Sparta is insolvent, or resulting in a finding
that Sparta is insolvent, or if Sparta voluntarily files for
bankruptcy, or if similar relief is granted with respect to
Sparta, under any law now or hereafter in effect relating to
bankruptcy, insolvency, relief of debtors, protection of
creditors; (ii) a receiver, trustee, custodian, liquidator,
assignee, sequestrator or other similar official is appointed for
Sparta or for all or any substantial pall of Sparta's property;
or (iii) if a proceeding is brought under the federal bankruptcy
code. Sparta fails to file a proper answer thereto (including a
request that the petitioner post adequate bond under Section
303(e) of said code) wIthin thirty days of receipt of notice of
said proceeding;
(c) Sparta performs a formal registration of all or a portion of its
stock on or after May 1, 2000, in which event the Shares shall
automatically be "piggybacked" with Sparta's shares for
registration purposes; or
(d) None of the foregoing Conditions have occurred by September 7,
2000.
3. Upon receipt by the Escrow Agent of written notice by RWC or Sparta
stating that one of the Conditions referred to in subparagraphs (a) through (d)
of Paragraph 2 of this Agreement have occurred (which absent any actual
knowledge on the part of the Escrow Agent to the contrary shall be accepted as
absolute grounds for release hereunder), the Shares shall be released by the
Escrow Agent to RWC. Following the release of the Shares hereunder, this
Agreement shall terminate and the Escrow Agent shall be relieved of all
responsibility hereunder.
4. The parties agree that the Shares may not in any way be offered for
sale, sold. pledged, hypothecated, transferred, assigned or in any other manner
disposed of, except as expressly provided for in this Agreement. Stop transfer
instructions to Sparta's transfer agent have been or will be placed with respect
to the Shares so as to restrict their sale, pledge or other transfer. Upon the
release of the Shares from escrow hereunder, Sparta shall notify Sparta's
transfer agent to remove the stop transfer instructions, accordingly.
5. Sparta agrees to indemnify and hold harmless Escrow Agent and RWC from
any costs, damages, expenses, losses or claims, including attorneys fees, which
2
Escrow Agent or RWC may incur or sustain as a result of or arising out of this
Agreement or Escrow Agent's duties relating thereto.
6. Escrow Agent shall have no duties or responsibilities other than those
expressly set forth herein, in its capacity as Escrow Agent, Escrow Agent shall
not be responsible for the genuineness or validity or any security, instrument,
document or item deposited with it and shall have no responsibility other than
to faithfully follow the instructions contained herein. Escrow Agent shall not
he liable to the other parties hereto or to anyone else for any action taken or
omitted by it, or any action suffered by it to he taken or omitted, in good
faith and in the exercise of reasonable judgment, except for the acts of willful
misconduct or gross negligence.
7. This Agreement shall be governed by and construed in accordance with the
laws of the Netherlands and the competent courts in the Netherlands shall have
the exclusive jurisdiction, to the exclusion of any other courts, over any
dispute between the parties arising out or in connection with this Agreement.
8. No waiver of any rights by any party hereto shall he construed as a
waiver of the same or any other right at any prior or subsequent time.
9. If any term, provision or covenant of this Agreement is held by a court
of competent jurisdiction or other authority to be invalid, void, unenforceable
or against regulatory or public policy, the remainder of the terms, provisions
and covenants of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. it is hereby stipulated and
declared to be the intention of the parties hereto that they would have executed
the remaining terms, provisions and covenants without including any of such
which may be hereafter declared invalid, void or unenforceable.
10. This Agreement supersedes any other agreements, understandings and
communications between the Parties in connection with the subject matter
thereof.
3
11. Any notices to be given pursuant to this Agreement shall be in writing
and shall be deemed to have been given at the time when (i) delivered in
person, against appropriate receipt, or (ii) five (5) business days after being
mailed via federal express or other overnight delivery service, or (iii) one
business day after sent by facsimile and confirmed by receipt, provided the
notice is addressed to the addresses stated below or any other address of which
either party shall advise the other parties in writing in the same fashion:
To Sparta: 0000 Xxxx Xxxxxx Xxxxxxx, Xxx: 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Facsimile No.:(000) 000-0000
To Xxxxx Xxxxxx & Co. Ltd:
X.X. Xxx X.0000
Xxxxxxxxxx Xxxxx,
Xxxxx Xxxxxx
Xxxxxx, XXXXXXX
To Escrow Agent: Xxxx X. Xxxxxx
00000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
IN WITNESS WHEREOF, Sparta, RWC and Escrow Agent have caused this Escrow
Agreement to be executed by their respective authorized agents.
ESCROW AGENT SPARTA SURGICAL CORPORATION
/s/ Xxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
-------------------------- -----------------------------------------
Xxxx X. Xxxxxx Xxxxxx X. Xxxxxx, Chairman of the Board
President and CEO
Xxxxx Xxxxxx & Co. Ltd.
/s/
-----------------------------------------
4
