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, as amended by that certain Amendment No. 1 to Agreement and Plan of
Merger, dated as of June 13, 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 Xxxx
X. Xxx, acting as agent for the stockholders of the Company (the "Stockholder
Representative"), 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, $.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.
WHEREAS, Parent, the Stockholder Representative, and Xxxxx Fargo Bank, N.A.
have entered into a separate agreement, dated as of the date hereof (the "Escrow
Agreement"), pursuant to which Xxxxx Fargo Bank, N.A., acting in its capacity as
escrow agent thereunder ("Escrow Agent") may, from time to time, distribute in
accordance with the terms of the Escrow Agreement shares of Parent Common Stock
and distributions related thereto to the Exchange Agent for further distribution
to the holders of Company Capital Stock (the "Stockholders") and to holders of
Outstanding Options (defined below), each of whom are listed on Schedule A
attached hereto as such schedule may be amended from time to time.
WHEREAS, the Merger Agreement provides that a portion of the Merger
Consideration, equal to the number of shares of Merger Consideration to which
all holders of Outstanding Options would have been entitled had such holders
exercised such options prior to the date that
was 10 days before the Effective Time (the "Reserved Shares"), is to be reserved
for issuance when and if such Outstanding Options are exercised;
WHEREAS, the execution and delivery of this Agreement is a condition
precedent to the closing of the Merger under 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 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 Stockholders (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 or upon
exercise of Outstanding Options. 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"), to be paid in
accordance with Exhibit A hereto.
(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, to be paid
in accordance with Exhibit A hereto, a revised copy of which shall be delivered
to the Exchange Agent at the time shares are remitted to the Exchange Agent in
accordance with this Section 1.2(b).
(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, to be paid in accordance with Exhibit A hereto, a revised
copy of which shall be delivered to the Exchange Agent at the time shares are
remitted to the Exchange Agent in accordance with this Section 1.2(c); provided,
however, that in no event will the aggregate of the Initial Shares plus the
Escrow Shares plus Reserved Shares not held in escrow by the Escrow Agent exceed
9,000,000 shares of Parent Common Stock.
(d) Within two (2) Business Days after the exercise of any Outstanding
Option by any holder pursuant to the terms of such Outstanding Option, the
number of Reserved Shares held by Parent to which such exercising holder is
entitled plus, to the extent that any such shares
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of Parent Common Stock had been previously paid to Stockholders, any (i) the
number of Reserved Shares constituting Escrow Shares or Set-Off Shares held in
escrow for the holders of Outstanding Options in accordance with the Escrow
Agreement, and (ii) shares of Milestone Consideration held in reserve for the
holders of Outstanding Options, be paid in accordance with Exhibit A hereto, a
revised copy of which shall be delivered to the Exchange Agent at the time
shares are remitted to the Exchange Agent in accordance with this Section
1.2(d).
(e) Within two (2) Business Days after the exercise, termination, or
expiration of the last Outstanding Option, the number of (i) remaining Reserved
Shares held by Parent, if any, that were not been previously remitted to the
Exchange Agent for distribution, (ii) the remaining Reserved Shares constituting
Escrow Shares or Set-Off Shares held in escrow for the holders of Outstanding
Options in accordance with the Escrow Agreement, and (iii) shares of Milestone
Consideration not previously remitted to the Exchange Agent for distribution if
the final Milestone has been achieved, be paid in accordance with Exhibit A
hereto, a revised copy of which shall be delivered to the Exchange Agent at the
time shares are remitted to the Exchange Agent in accordance with this Section
1.2(e).
(f) 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, to be paid in
accordance with Exhibit A hereto, a revised copy of which shall be delivered to
the Exchange Agent at the time shares are remitted to the Exchange Agent in
accordance with this Section 1.2(f); provided, however, that in no event will
the aggregate of the Milestone Shares exceed 10,000,000 shares of Parent Common
Stock.
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 accordance with the Exhibit A delivered to the Exchange Agent in
connection with each distribution date; provided, however, if a Person has not
exercised all of its Outstanding Options, Parent shall reserve and continue to
keep available for issuance that number of shares of Parent Common Stock equal
to the difference between the number of shares of Parent Common Stock to which
the Person would be entitled to receive if all of its Outstanding Options were
exercised less the number of shares of Parent Common Stock to which the Person
is entitled to receive on the Effective Date.
1.3 List of the Company's Stockholders and Option 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 Stockholders and the holders of
Outstanding Options as of the Effective Time (the "Stockholder List"). The
Stockholder List shall contain such information as the Exchange Agent may
reasonably request, including (a) the name of each Stockholder and holder of
Outstanding Options, (b) the mailing address of each Stockholder and holder of
Outstanding Options, and (c) the number of shares of Company Common Stock owned,
and/or the number of
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Outstanding Options held, as applicable, by each Stockholder and holder of
Outstanding Options immediately prior to the Effective Time. A copy of such
Stockholder List as of the Effective Date is set forth on Exhibit B attached
hereto. Exhibit B may be revised from time to time to reflect any revisions to
information contained in such exhibit and to add thereto any as a Stockholder
any Person who exercises an Outstanding Option if not previously listed as a
Stockholder thereon. At the time of such revision, a copy of the revised Exhibit
B shall be provided to the Exchange Agent.
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 Stockholder (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 Stockholder 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 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 Stockholder 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 Stockholder (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 Stockholder. 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 Stockholder (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 and this 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 Reserved Shares. If the conditions set forth in this Agreement
and the Merger Agreement related to the payment of Reserved Shares are
satisfied, the Exchange Agent shall deliver to the holder exercising an
Outstanding Option (or to a transferee specified in the option exercise letter)
that number of Reserved Shares payable to such exercising holder within five (5)
Business Days after deposit of such Reserved Shares by Parent with the Exchange
Agent.
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2.5 Convey Remaining Reserved Shares Upon Exercise, Termination or
Expiration of Final Outstanding Option. Within five (5) Business Days after the
exercise, termination, or expiration of the last Outstanding Option, the
Exchange Agent shall deliver to each Stockholder (or to a transferee specified
in the Letter of Transmittal) in accordance with Exhibit A hereto, which exhibit
shall be delivered to the Exchange Agent at the time shares are remitted to the
Exchange Agent in accordance with this Section 2.5, that number of (i) remaining
Reserved Shares held by Parent, if any, that were not been previously remitted
to the Exchange Agent for distribution, (ii) the remaining Reserved Shares
constituting Escrow Shares or Set-Off Shares held in escrow for the holders of
Outstanding Options in accordance with the Escrow Agreement, and (iii) shares of
Milestone Consideration not previously remitted to the Exchange Agent for
distribution.
2.6 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 Stockholder (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.
2.7 Legend on Parent Common Stock. If a Stockholder is a party to a Share
Transfer Restriction Agreement with Parent, each certificate representing shares
of Parent Common Stock issued to such Stockholder 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.
2.8 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
Stockholder 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
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 Stockholder'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 Stockholder that would
otherwise have been entitled to a fraction of a share of Parent Common Stock,
cash (without
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interest) in an amount equal to his, her or its proportionate interest in the
value of the Excess Shares.
2.9 Lost Certificates. If any Stockholder 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 Stockholder to furnish an affidavit of lost stock
certificate in form satisfactory to the Exchange Agent and Parent before
delivering to such Stockholder 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.
2.10 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 the applicable date of deposit of such shares.
2.11 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;
(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.
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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.
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.
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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
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: ________________________________
Fax: _________________________________
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]
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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:
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Title:
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EXCHANGE AGENT: XXXXX FARGO BANK, N.A.
By:
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Name:
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Title:
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COMPANY: 3F THERAPEUTICS, INC.
By:
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Name:
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Title:
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SIGNATURE PAGE
EXCHANGE AGENT AGREEMENT
