Exhibit 10.9
ESCROW AGREEMENT
THIS ESCROW AGREEMENT made and entered into this ____day of
_______________, 2001, by and between Xxxx X. Xxxxxxx, Ph.D., Xxxxx X. Xxxxxx,
Xxxxx X. Xxxx, Xxxxxx X. Xxxxxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxxxx Xxxxx Xxxxxxxx,
Xxxxxx Xxxx, Xxxxxxx X. XxXxxx, M.D., Xxxx X. Xxxxxx, Xxxxxxxx Xxxxx Xxxxx,
Xxxxx X. Electromedicina, S.L., Xxxx X. Xxxxxx and Xxxxxxx Xxxxxxx (individually
the "Depositor" or collectively the "Depositors");
________________________________________, a corporate fiduciary with its
principal office located at ___________________________________ (the "Escrow
Agent"); MedicalCV, Inc., a company incorporated in the State of Minnesota with
its principal office located at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx Xxxxxxx,
Xxxxxxxxx (the "Issuer") and the Commissioner of Commerce for the State of
Minnesota (the "Commissioner");
WITNESSETH THAT:
Each of the Depositors is the owner of that number of shares of common
stock of the Issuer, par value $.01 per share (the "Common Stock"), and options
and warrants to purchase that number of shares of Common Stock upon exercise
thereof as listed opposite his or her name on APPENDIX A, attached hereto and
made a part hereof.
The Issuer has applied to the Commissioner for registration of its
units (the "Units"), each Unit consisting of one share of Common Stock and one
redeemable Class A warrant to purchase one share of Common stock (the
"Warrants"), the Warrants and the Common Stock issuable upon exercise of the
Warrants for sale to residents of Minnesota. As a condition of registration, the
Depositors, the Escrow Agent and the Issuer agree to be bound by this Escrow
Agreement and the applicable rules and regulations of the Commissioner.
Each of the Depositors has deposited the securities listed opposite his
or her name on APPENDIX A with the Escrow Agent, and the Escrow Agent hereby
acknowledges receipt thereof. These securities are herein collectively referred
to as the "Escrowed Securities."
THEREFORE, the parties agree as follows:
1. The Escrow Agent agrees to hold the Escrowed Securities until such
time as the Escrow Agent shall receive a written release issued by the
Commissioner permitting the release from escrow of all or a part of the Escrowed
Securities held under this Escrow Agreement. Upon receipt of such release, the
Escrow Agent may release to each Depositor all or a part of the Escrowed
Securities in accordance with the order of the Commissioner.
Subject to the above provision, the term of escrow under this Escrow
Agreement shall run for a period of three (3) years from the date of the Order
of Registration, unless at an earlier date the Issuer shall have demonstrated
annual net earnings, after taxes and excluding extraordinary items, determined
in accordance with generally accepted accounting principles, for any two
consecutive years after the date of the Order of Registration, of at least five
percent (5%) of an amount determined by multiplying the total number of
outstanding shares of the Issuer, including the Escrowed Securities, by the
average price per share paid by public investors. The existence of the required
annual net earnings shall be demonstrated by certification to that effect
furnished to the Commissioner by an independent certified public accountant or
an authorized officer of the Issuer. In addition, the Issuer and each Depositor
shall furnish the Commissioner a written statement that
none of the Escrowed Securities nor any interests therein have been sold,
transferred or otherwise disposed of (except as permitted by paragraph 4) as a
condition of the release from escrow.
2. Notwithstanding any provision of paragraph 1, the Commissioner may,
in his or her discretion, terminate the term of escrow with respect to all or
any part of the Escrowed Securities of any Depositor before the expiration of
the period of occurrence of the event specified in paragraph 1 and release such
securities if the Commissioner determines that the release of such securities to
the Depositor(s) will not be detrimental to the Issuer, the public investors or
any other party concerned. At the time of release by the Commissioner of any
securities from escrow, the application of this Escrow Agreement shall terminate
with respect to the securities so released.
3. While an Escrowed Security is held in escrow pursuant to this Escrow
Agreement, neither it nor any interest therein, nor any right or title thereto,
may be sold or transferred, by means of transfer of the Escrowed Security
separate from the certificate representing it or otherwise, without the prior
written release of the Commissioner, except that the release of the Commissioner
need not be obtained to transfer Escrowed Securities by will or the laws of
descent and distribution or otherwise by order or process of any Court.
4. Upon receipt of such written release from the Commissioner directing
that some or all of the Escrowed Securities of the Depositors held under this
Escrow Agreement be released for the purpose of transfer to another person
against concurrent deposit of the securities so transferred, the Escrow Agent
may release such securities but only against such deposit under this Escrow
Agreement of all the transferred securities. The Commissioner shall authorize
such transfer of the Escrowed Securities only upon receipt of a signed statement
by the proposed transferee that he or she has full knowledge of the terms of
this Escrow Agreement and that the proposed transferee accepts such securities
subject to the conditions of this Escrow Agreement.
5. The Depositors agree that they shall be entitled to receive cash and
property dividends with respect to the Escrowed Securities while such securities
are held in escrow pursuant to this Escrow Agreement to the same extent as other
security holders of the same class of security and that said cash or property
dividends shall be placed under the terms of this Escrow Agreement.
6. Upon declaration of any dividend in shares of the Issuer or a
subsidiary to which the Escrowed Securities are entitled pursuant to a share
dividend or split authorized by a vote of the shareholders, the Depositors and
the Escrow Agent shall forthwith enter into a Supplemental Escrow Agreement,
covering such share dividend, which Supplemental Escrow Agreement shall
incorporate all the conditions of escrow contained in this Escrow Agreement. The
shares received as dividends shall be forthwith deposited in escrow with the
Escrow Agent pursuant to such Supplemental Escrow Agreement, and the Escrow
Agent shall deliver to the Commissioner a receipt for the shares thus escrowed.
7. During the term of escrow, the Depositors shall not be entitled to,
and hereby waive all rights to, participate in any distribution of assets of the
Issuer in the event of liquidation, dissolution or winding up until the public
investors shall have received cash or property in an amount or value equal to
the price paid by public investors for securities purchased by such public
investors; and thereafter the Depositors shall participate without the public
investors until they shall have received cash or other property in an amount or
value equal to the price paid by the Depositors for the Escrowed Securities; and
thereafter the public investors and the Depositors shall participate equally
according to the terms of their securities. Any Depositor seeking release of all
or any part of the Escrowed Securities pursuant to this paragraph 7 shall
furnish the Commissioner a written statement that none of the Escrowed
Securities nor any interests therein have been sold, transferred
(except as provided in paragraph 4) or otherwise disposed of, without the
consent of the Commissioner, as a condition of the release from escrow.
8. This Escrow Agreement shall not be construed to prohibit any
Depositor from participating in any distribution of securities of any
corporation other than the Issuer resulting from the sale of assets of the
Issuer or a merger or consolidation of the Issuer with or into any other
corporation or corporations. In the event of such a transaction, the Escrow
Agent should obtain written authorization from the Commissioner prior to the
release of the Escrowed Securities, and, any such distribution payable in
securities of any corporation other than the Issuer paid with respect to the
Escrowed Securities shall be delivered to the Escrow Agent and held pursuant to
a Supplemental Escrow Agreement prepared and executed as described in paragraph
6. In the event of a merger or consolidation of the Issuer with or into any
other corporation or corporations, any securities shall be delivered to the
Escrow Agent and held pursuant to a Supplemental Escrow Agreement prepared and
executed as described in paragraph 6.
9. The Escrow Agent may conclusively rely upon, and shall be protected
in acting upon, any statement, certificate, notice, request, consent, order or
other document believed by it to be genuine and to have been signed or presented
by the proper party or parties. The Escrow Agent shall have no duty or liability
to verify any such statement, certificate, notice request, consent, order or
other document and its sole responsibility shall be to act only as expressly set
forth in this Escrow Agreement. The Escrow Agent shall be under no obligation to
institute or defend any action, suit or proceeding in connection with this
Escrow Agreement unless first indemnified to its satisfaction. 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 action taken or
omitted in good faith upon advice of such counsel. All securities held by the
Escrow Agent pursuant to this Escrow Agreement shall constitute trust property
for the purposes for which they are held and the Escrow Agent shall not be
liable for any interest thereon.
10. The Escrow Agent shall be entitled to receive from the Company
reasonable compensation for its services as contemplated herein. In the event
that the Escrow Agent shall render any additional service not provided for
herein or that any controversy shall arise hereunder or that the Escrow agent
shall be made a party or shall intervene in any action, suit or proceeding
pertaining to this Escrow Agreement, it shall be entitled to receive reasonable
compensation from the Company for such additional services.
11. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto, their heirs, successors and assigns.
12. This Escrow Agreement shall terminate in its entirety when all
Escrowed Securities covered hereby and by any Supplemental Escrow Agreements
have been released as provided in paragraph 1.
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement on
the date first above written.
Escrow Agent: Issuer: MEDICALCV, INC.
By: By:
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Its: Its:
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Depositors:
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Xxxx X. Xxxxxxx, Ph.X. Xxxxx X. Xxxxxx
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Xxxxx X. Xxxx Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxxx
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Xxxxxx Xxxx Xxxxxxx X. XxXxxx, M.D.
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Xxxx X. Xxxxxx Xxxxxxxx Xxxxx Xxxxx
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Xxxxx X. Electromedicina S.L. Xxxx X. Xxxxxx
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Xxxxxxx Xxxxxxx
Accepted for filing:
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Commissioner of Commerce
APPENDIX A
XXXX X. XXXXXXX, PH.D.: Stock Certificate #232 for 1,000 shares
Stock Certificate #235 for 15,000 shares
Stock Certificate #237 for 67,500 shares
Warrant to purchase 240,000 shares
XXXXX X. XXXXXX: Stock Certificate #233 for 15,000 shares
XXXXX X. XXXX: Stock Certificate #205 for 10,000 shares
Option A-98A for 90,000 underlying shares
Option E-001A for 10,000 underlying shares
XXXXXX X. XXXXXXXXXX: Stock Certificate #157 for 4,000 shares
Stock Certificate #219 for 4,000 shares
XXXXXX X. XXXXXXX: Option C-032 for 7,000 underlying shares
Option E-006 for 10,000 underlying shares
SALVADOR XXXXX XXXXXXXX: Stock Certificate #140 for 5,000 shares
Option C-036 for 7,000 underlying shares
XXXXXX XXXX: Stock Certificate #136 for 2,000 shares
Option C-034 for 7,000 underlying shares
XXXXXXX X. XXXXXX, M.D.: Stock Certificate #162 for 1,780 shares
Stock Certificate #167 for 10,000 shares
Stock Certificate #168 for 5,000 shares
Stock Certificate #169 for 5,000 shares
Stock Certificate #170 for 5,000 shares
Stock Certificate #201 for 7,500 shares
Option C-035 for 7,000 underlying shares
Option E-003 for 7,500 underlying shares
XXXX X. XXXXXX: Stock Certificate #141 for 5,000 shares
Stock Certificate #142 for 5,000 shares
Stock Certificate #143 for 5,000 shares
Stock Certificate #165 for 35,360 shares
Stock Certificate #166 for 18,470 shares
Stock Certificate #241 for 850,000 shares
Option C-033 for 7,000 underlying shares
Warrants to purchase 100,000 shares
SALVADOR XXXXX XXXXX: Stock Certificate #160 for 3,020 shares
XXXXX X. ELECTROMEDICINA S.L.: Stock Certificate #161 for 6,215 shares
XXXX X. XXXXXX: Stock Certificate #234 for 37,500 shares
XXXXXXX XXXXXXX: Stock Certificate #172 for 24,000 shares
Stock Certificate #208 for 7,000 shares
