EXHIBIT 10.2
WITHDRAWAL AGREEMENT
THIS WITHDRAWAL AGREEMENT is entered into this 11th day of May, 1999
by and between Angeion Corporation, a Minnesota corporation ("Angeion"), and ELA
Medical, Inc., a Delaware corporation ("ELA").
RECITALS
WHEREAS, Angeion and ELA entered into a joint venture to market and
sell cardiac stimulation and related devices manufactured by ELA and Angeion in
the United States (the "Business").
WHEREAS, in connection with the joint venture, Angeion and ELA
formed ELA*Angeion LLC (formerly known as Angellan Medical Systems, LLC), a
Delaware limited liability company (the "Company") by entering into the Limited
Liability Company Operating Agreement of Angellan Medical Systems, LLC dated
December 9, 1997 (the "Operating Agreement"; capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to them in the Operating
Agreement).
WHEREAS, Angeion and ELA now wish to terminate their joint venture.
WHEREAS, in connection with the termination of the joint venture,
Angeion and ELA have agreed that, subject to the terms and conditions set forth
herein, ELA shall assume certain obligations of Angeion, and Angeion shall
withdraw from the Company.
NOW, THEREFORE, in consideration of the mutual premises set forth
herein and other good and valuable consideration, the parties hereto hereby
agree as follows:
ARTICLE I
WITHDRAWAL OF ANGEION
1.1 Members Consent. Angeion and ELA hereby consent, in accordance
with the provisions of Section 14.1(a)(ii) of the Operating Agreement, to the
withdrawal of Angeion as a Member of the Company effective as of the Closing
Date (as hereinafter defined). The parties hereby agree that, as of the Closing
Date and notwithstanding any provisions of Section 14.3 of the Operating
Agreement, Angeion (i) shall withdraw from the Company, (ii) shall no longer be
a Member of the Company, (iii) shall no longer be a party to the Operating
Agreement and (iv) shall not be entitled to the benefits, or be bound by the
provisions, thereof; provided, however, that, not withstanding the provisions of
Section 17.3 of the Operating Agreement, Angeion and ELA shall continue to be
bound by the provisions of Articles I, IX, XV and XVII
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and Sections 6.1 and 6.4, Section 10.3(a) to 10.3(d), Section 11.2, Section 14.7
and Section 16.1 of the Operating Agreement to the extent such provisions are
not superceded by Section 1.2 of this Agreement.
1.2 Further Agreements for the Operating Agreement. Notwithstanding
the provisions of the Operating Agreement, including, without limitation,
Sections 8.2, 9.1, 9.10, 11.3, 11.4, 11.5, 14.4 and 14.6 thereof, all of which
Angeion and ELA hereby waive, Angeion and ELA hereby agree as follows:
(a) As of the Closing Date, ELA shall assume sole
responsibility, without recourse to Angeion, its successors or assigns for
financing the operations of the Company. From and after the Closing Date,
Angeion shall have no further present or future obligation to make any Capital
Contributions to the Company, including, without limitation, any obligation to
pay any Capital Contributions previously due, if any. Angeion further agrees and
acknowledges that it shall not be entitled to any return of its Capital
Contributions.
(b) As of the date hereof, the Percentage Interests of Angeion
and ELA in the Company shall be 0% and 100%, respectively.
(c) As of April 1, 1999, ELA is designated to serve as the
"tax matters partner" pursuant to Section 9.10 of the Operating Agreement.
(d) As of the Closing Date, any and all Company Trademarks
shall be the sole property of the Company and, notwithstanding the provisions of
Section 11.3, the Company shall have no obligation to abandon such trademarks
upon dissolution, and ELA shall have the right to use such Company Trademarks as
it sees fit for any use or activity.
(e) As of the Closing Date, any and all patents and patent
applications filed on behalf of the Company shall be the sole property of the
Company and, notwithstanding the provisions of Section 11.4(b) of the Operating
Agreement, the Company shall have no obligation to assign any of such patents or
patent applications to Angeion upon dissolution and such patents and patent
applications may be assigned in their entirety upon dissolution to ELA.
(f) As of the Closing Date, any and all Published Works
prepared by the Company shall be the sole property of the Company and,
notwithstanding the provisions of Section 11.5 of the Operating Agreement, the
Company shall have no obligation to assign such Published Works to Angeion and
such Published Works may be assigned in their entirety upon dissolution to ELA.
(g) Within thirty (30) days following the Closing Date,
Angeion shall deliver to the Company the originals of all books, records and
files of the Company maintained by Angeion, provided that Angeion shall be
entitled to keep a copy thereof for archival purposes.
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(h) Angeion hereby acknowledges and agrees that, in the event
that ELA elects to liquidate and dissolve the Company pursuant to the provisions
of the Delaware Act, Angeion shall not receive any distribution pursuant to
Section 14.4 of the Operating Agreement or pursuant to the provisions of the
Delaware Act, or any return of its Capital Contribution pursuant to the
provisions of the Delaware Act or the Operating Agreement.
1.3 Paravant Agreements. ELA hereby agrees to assume, as of April 1,
1999, any and all of Angeion's obligations and liabilities with respect to
Angeion's guaranty of the Company's performance of the Supply Agreement dated
January, 1999 by and among the Company, Angeion, ELA and Paravant Computer
Systems, Inc. ("Paravant") and the Development Agreements dated January, 1999 by
and among the Company, Angeion and ELA and Paravant (collectively, the "Paravant
Agreements").
1.4 Indemnification of Angeion. ELA hereby agrees to indemnify and
hold Angeion harmless from and against any liability, loss, damage or expense
that Angeion, its successors or permitted assigns may incur as a result of,
based on or arising from:
(a) the liabilities and obligations of the Company reflected
on the balance sheet of the Company as at March 31, 1999;
(b) all other liabilities and obligations of the Company, and
any claims or disputes relating thereto, whether existing as of the Closing Date
or arising thereafter, fixed or contingent, known or unknown, asserted or
unasserted, to the extent that such liabilities or obligations relate to, are
based on or arise from the conduct of the Business by the Company from and after
April 1, 1999, excluding, however, any and all Third Party Claims asserted by or
on behalf of a patient arising out of or relating to any Product supplied to the
Company by Angeion under the Angeion Supply Agreement.
(c) the liability of Angeion with respect to its guaranty of
the Company's performance of the Paravant Agreements.
1.5 Angeion Supply Agreement. The parties hereby agree that, in
accordance with Section 10.1 of the Angeion Supply Agreement and with effect
from and after the Closing Date, the Angeion Supply Agreement shall be
terminated in accordance with the Amendment and Termination of the Implantable
Cardioverter Defibrillator Product Manufacturing and Supply Agreement between
Angeion and the Company attached hereto as Exhibit A (the "Amended and
Terminated Angeion Supply Agreement"). Angeion and ELA shall enter into an
Implantable Cardioverter Defibrillator Manufacturing and Supply Agreement with
respect to future ICD products of Angeion in the form attached hereto as Exhibit
B (the "New Supply Agreement"). To the extent that ELA purchases, receives as a
liquidating distribution or otherwise acquirers any Products from the Company,
Angeion hereby makes the representations,
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warranties and covenants set forth in Section 9.1(a) of the Angeion Supply
Agreement and agrees to indemnify ELA on the terms and subject to the conditions
set forth in Sections 9.3, 9.4, 9.5 and 9.9 of the Angeion Supply Agreement, the
provisions of Section 9.1(a), 9.3, 9.4, 9.5 and 9.9 of the Angeion Supply
Agreement being incorporated by reference herein and made a part hereof.
1.6 Assumption of Other Angeion Obligations. Subject to receiving
from Angeion a copy of the complete technical dossiers for such products and all
information and know how necessary to provide such service such dossiers and
information being limited to that information currently in Angeion's possession,
ELA or its Affiliates agrees to provide at its own expense full warranty
coverage, technical service and regulatory compliance services, for which
Angeion is currently responsible under (i) Applicable Law, (ii) the Angeion
Supply Agreement for products supplied to the Company and (iii) contracts with
third parties for model 2000 and 2010 series ICD products and associated leads
and programmers supplied to such third parties, and implanted in humans in the
United States (including associated programmers for such ICD models) whether
sold by ELA, the Company or Angeion, other than any and all such units implanted
or sold by St. Jude Medical, Inc.
(a) In the event Angeion does not agree with ELA's
determination that such Product is defective under Section 9.1(b), Angeion and
ELA may retain an appropriate expert to make such determination in accordance
with the provisions of Section 9.1(b) of the Angeion Supply Agreement.
(b) Angeion hereby grants to ELA a limited license to use such
technical information and know how contained in the technical dossier materials
for the purposes of providing the warranty, technical and regulatory compliance
services.
(c) Angeion shall lend to ELA, rent-free, at the expense of
Angeion for shipping from Angeion, a test system (the "Test System"), including
EDF board, emulator, load box, emulation tank, associated interconnect fixtures,
captive programmer, captive wand, ECG duplicating software and memory
decomposition software, required to perform the services undertaken by ELA or
its Affiliates, subject to Angeion's right to use such Test System if necessary
for warranty services, technical support or regulatory compliance on units
implanted in Argentina or by St. Jude.
1.7 Closing. The closing for this Agreement (the "Closing") shall
take place at the offices of the Faegre & Xxxxxx, LLP on May 11, 1999 (the
"Closing Date") and shall occur simultaneously with the execution of this
Agreement.
1.8 Deliveries.
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(a) Deliveries by Angeion. Angeion shall deliver to ELA at the
Closing the following:
(i) an executed counterpart of the Amended and
Terminated Angeion Supply Agreement;
(ii) an executed counterpart of the New Supply
Agreement; and
(iii) an executed counterpart of a Settlement Agreement
and Mutual Release in the form attached hereto as Exhibit E (the "Mutual
Release).
(b) Deliveries by ELA. ELA shall deliver to Angeion at the
Closing the following:
(i) an executed counterpart of the Amended and
Terminated Angeion Supply Agreement;
(ii) an executed counterpart of the New Supply
Agreement; and
(iii) an executed counterpart of the Mutual Release.
(c) Further Agreements. As soon as possible after the Closing
Date,
(i) ELA Medical S.A. and Angeion shall execute and
deliver an Amendment to the Implantable Cardioverter Defibrillator Product
Manufacturing and Supply Agreement between Angeion and Ela Medical s.a. in
the form attached hereto as Exhibit C (the "Ela Medical Supply Agreement
Amendment");
(ii) Synthelabo S.A. and Angeion shall execute and
deliver an Amendment to the Amended and Restated Master Strategic
Investment and Relationship Agreement dated as of October 9, 1997, between
Angeion and Synthelabo S.A. in the form attached hereto as Exhibit D (the
"Synthelabo Amendment");
(iii) Angeion and ELA Medical S.A. shall execute and
deliver the Escrow Agreement described in Section 3.1 hereof; and
(iv) ELA shall deliver evidence reasonably satisfactory
to Angeion that ELA has assumed the liabilities and obligations of Angeion
with respect to its guaranty of the Company's performance of Paravant
Agreements.
(d) Payments. On or before May 21, 1999, ELA or its Affiliates
shall pay by wire transfer or bank check the following amounts:
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(i) all past due amounts owing by the Company to
Angeion;
(ii) all past due amounts owing by ELA Medical S.A. to
Angeion; and
(iii) all amounts owing by ELA to Angeion with respect
to the Paravant Development Agreement, it being agreed and understood that
ELA shall also pay directly to Paravant the balance due to Paravent under
the Paravant Agreements.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each of Angeion and ELA make the representations and warranties to
the other set forth in this Article II, each of which is true and correct as of
the date hereof and will be true and correct as of the Closing Date:
2.1 Organization; Authority. It is a corporation duly organized,
validly existing and in good standing in its jurisdiction of incorporation. It
has all requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on its part.
2.2 Binding Effect; Performance. This Agreement has been duly
executed and delivered on its behalf and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms. No
other corporate action on its part or its stockholders is necessary to authorize
the execution, delivery or performance of this Agreement or the consummation of
the transactions contemplated hereby.
2.3 Consents and Approvals; No Violations. The execution, delivery
and performance of this Agreement by it and the consummation of the transactions
contemplated hereby will not (i) violate or conflict with any provision of its
Certificate or Articles of Incorporation or By-Laws; (ii) violate or conflict
with, result in the breach of, constitute an event of default (or an event
which, with the lapse of time, or the giving of notice, or both, would
constitute an event of default) under, or result in the creation in any party of
any right to accelerate, modify, cancel or terminate, any contract or other
instrument to which it is a party, or by which it or any of its assets is bound,
or result in the creation of any encumbrance or other right of any third party
upon any of the Assets, (iii) violate or conflict with in any material respect
any law, rule, regulation, ordinance, code, judgment, order, writ, injunction or
decree of any court or any governmental body or agency thereof of any
jurisdiction to which it or any of its
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assets may be subject; or (iv) require any material registration, declaration or
filing with, or material permit, license, exemption, order, franchise, approval,
consent or other authorization of, or the giving of notice to, any governmental
or regulatory body, agency or authority.
ARTICLE III
POST-CLOSING COVENANTS
3.1 Product Liability Insurance. Angeion hereby agrees to maintain
in full force and effect at its expense for a period of five (5) years from and
after the Closing Date product liability insurance with limits of liability at
least as high as those currently in place and with the current carrier or such
other carrier as ELA may reasonably approve, subject to availability on
commercially reasonable terms. Each such policy shall provide for not less than
thirty (30) days' prior written notice to ELA of the exercise of any right of
cancellation or the failure of Angeion to renew any such policy during the
five-year period following the Closing Date. Angeion shall provide ELA with
copies of certificates of insurance evidencing compliance with this Section as
soon as practicable after the Closing Date and within thirty (30) days after the
expiration of each policy during the five-year period following the Closing
Date. Angeion and ELA agree that, of the amounts payable by ELA Medical S.A.
with respect to the Units to be shipped in accordance with Exhibit C hereto, an
aggregate amount of $800,000 shall be paid by ELA Medical S.A. into an escrow
account (the "Escrow Account'), such amount to be paid from amounts due and
owing by ELA Medical S.A. to Angeion in the amount of 50% of each invoice until
such time as the sum in the Escrow Account aggregates $800,000. The Escrow
Account shall be established by ELA, Angeion and a mutually acceptable escrow
agent (the "Escrow Agent") pursuant to the terms of an escrow agreement to be
entered into among Angeion, ELA and the Escrow Agent (the "Escrow Agreement")
which shall provide that the Escrow Agent shall only distribute amounts in the
Escrow Account for the payment of premiums for such product liability insurance.
It is hereby agreed that any residual amounts remaining in the Escrow Account
after the payment in full of premium for the product liability insurance
coverage for the five-year period following the Closing Date (either by means of
a prepayment in full or annual payments during such five-year period) shall be
reimbursed to Angeion.
ARTICLE IV
MISCELLANEOUS PROVISIONS
4.1 Amendment. This Agreement may not be amended except by a written
instrument signed by each of the parties hereto.
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4.2 Indemnification Procedures. If Angeion or ELA seeks
indemnification hereunder for a matter that involves a claim by a third party,
the party seeking indemnification (an "Indemnitee") shall promptly notify the
indemnifying party (the "Indemnitor") of and shall provide reasonable
information and details concerning the nature of such claim. Indemnitor shall,
to the extent applicable, have the right to assume the defense at its expense of
all third party claims and shall pay all costs and damages finally awarded
against the Indemnitor and the Indemnitee in conjunction with such third party
claims, provided that (i) the Indemnitee provides prompt written notice to the
Indemnitor of its receipt of service of any such claim; (ii) the Indemnitor
controls the defense of the third party claim on behalf of all Parties; (iii)
the Indemnitee consents to representation in such claims by counsel selected by
and representing the Indemnitor; provided, however, that if outside counsel to
the Indemnitee reasonably advises the Indemnitee and the Indemnitor in a written
opinion that such joint representation raises a potential conflict of interest
as between the Indemnitee and the Indemnitor (other than a conflict concerning
the right to indemnification under this Agreement), then the Indemnitee shall
have the right to retain separate counsel to represent its interests in such
third party claim and the reasonable costs, fees and expenses thereof shall be
borne equally by the Indemnitee and the Indemnitor; and (iv) upon request of the
Indemnitor, the Indemnitee uses its Best Efforts to cooperate with the
Indemnitor in defending such third party claim by providing the Indemnitor with
all necessary business information and relevant documents under its control
related to the third party claim and cooperating with such other reasonable
requests of the Indemnitor at the Indemnitor's expense in accordance with
Applicable Law. The indemnity obligations under this Section 4.2 shall not apply
to amounts paid in settlement of any loss, claim, liability or action if such
settlement is effected without the consent of the Indemnitor, which consent
shall not be unreasonably withheld. The Indemnitee's failure to deliver notice
to the Indemnitor within a reasonable time after the commencement of any such
action, if materially prejudicial to the Indemnitor's ability to defend such
action, shall relieve the Indemnitor of any liability to the Indemnitee under
this Section 4.2, but not any liability that it may have to the Indemnitee
otherwise than under this Section 4.2.
4.3 Dispute Resolution. Any and all disputes between the parties or
between a party and the Company concerning this Agreement shall be governed by
the provisions of Article XV of the Operating Agreement, which shall survive any
termination of the Operating Agreement or dissolution of the Company.
4.4 Waiver of Compliance. Except as otherwise provided in this
Agreement, any failure of any of the parties to comply with any obligation,
covenant or agreement contained herein may be waived only by a written notice
from the party entitled to the benefits thereof. No failure by any party hereto
to exercise, and no delay in exercising, any right hereunder, shall operate as a
waiver thereof, nor shall any single or partial exercise of either right
hereunder preclude any other or future exercise of that right by that party.
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4.5 Notices. All notices and other communications hereunder shall be
deemed given if given in writing and delivered personally, by courier or by
facsimile transmission, telexed or mailed by registered or certified mail
(return receipt requested), fax, telex or postage fees prepaid, to the party to
receive the same at its respective address set forth below (or at such other
address as may from time to time be designated by such party to the others in
accordance with this Section 4.5):
If to the Manufacturer: With copies to:
Angeion Corporation Faegre & Xxxxxx, LLP
00 Xxxxx Xxxxxxx Xxxxxx
7601 Northland Drive 0000 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 000 Xxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Attention: Chief Executive Officer Attention: Xxxxx X. Xxxxxx
If to the Purchaser: With copies to:
ELA Medical, Inc. ELA Medical
2950 Xenium Lane Centre d'Affaires la Boursidiere
Xxxxxxxx, XX 00000 92357 Le Plessis Xxxxxxxx
Telephone: (000) 000-0000 France
Telecopier: (000) 000-0000 Telephone: (33)(1)46.01.33.01
Attention: Chief Executive Officer Telecopier: (33)(1)46.01.33.15
Attention: President
Synthelabo
00 Xxxxxx Xxxxxxx
00000 Xx Xxxxxxx Xxxxxxxx
Xxxxxx
Telephone: (33)(1)45.37.56.67
Telecopier: (33)(1)45.37.58.04
Attention: General Counsel
and
Coudert Brothers
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopier: (000-000-0000
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Attention: Xxxxx X. Xxxxxxx, Esq.
All such notices and communications hereunder shall be deemed given when
received, as evidenced by the signed acknowledgment of receipt of the person to
whom such notice or communication shall have been personally delivered,
confirmed answer back or other evidence of transmission or the acknowledgment of
receipt returned to the sender by the applicable postal authorities. Receipt of
notices sent by facsimile shall be confirmed by telephone.
4.6 Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Neither this Agreement nor any
rights, duties or obligations hereunder shall be assigned by either party
without the prior written consent of the other (which consent shall not be
unreasonably withheld) and any attempted assignment or transfer without such
prior written consent shall be null and void; provided that, ELA shall have the
right, without the prior written consent of Angeion, to assign its rights and to
delegate its duties under this Agreement to any Affiliate of ELA, and provided
that, Angeion shall have the right, without the prior written consent of ELA, to
assign its rights and to delegate its duties under this Agreement in connection
with the sale of substantially all of the assets of Angeion related to the
design, development and manufacture of implantable cardioverter defibrillators;
provided, however, that Angeion shall not, without the prior written consent of
ELA, sell all or substantially all of such assets unless the purchaser of such
assets provides ELA with evidence reasonably satisfactory to ELA of such
purchaser's agreement to assume all of Angeion's obligations and liabilities
under, and to be found by all the provision of, this Agreement and the Amended
and Terminated Angeion Supply Agreement.
4.7 No Third Party Beneficiaries. Neither this Agreement or any
provision hereof nor any Exhibit, certificate or other instrument delivered
pursuant hereto, nor any agreement to be entered into pursuant hereto or any
provision hereof, is intended to create any right, claim or remedy in favor of
any person or entity, other than the parties hereto and their respective
successors and permitted assigns.
4.8 Expenses. Each party shall pay its own expenses, including
attorneys' fees and disbursements, in connection with this Agreement, the
agreements to be entered into pursuant hereto and the transactions contemplated
hereby.
4.9 Public Announcements. Unless required by law, regulatory
authority or the rules of any applicable securities exchange, no party shall
issue any press release or make any other public announcement with respect to
this Agreement or the transactions contemplated hereby, without the prior
consent of the other parties, which consent shall not be unreasonably withheld.
The parties will reasonably cooperate with each other in the development and
distribution of all press releases and other public announcements with respect
to this Agreement
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and the transactions contemplated hereby, and will furnish the other with drafts
of any such releases and announcements as far in advance as practicable.
4.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.11 Headings. The article and section headings contained in this
Agreement are solely for convenience of reference, are not part of the agreement
of the parties and shall not be used in construing this Agreement or in any way
affect the meaning or interpretation of this Agreement.
4.12 Entire Agreement; Severability. This Agreement, and the
Exhibits, certificates and other instruments and documents delivered pursuant
hereto, together with the other agreements referred to herein and to be entered
into pursuant hereto, embody the entire agreement of the parties hereto in
respect of, and there are no other agreements or understandings, written or
oral, among the parties relating to, the subject matter hereof. This Agreement
supersedes all prior agreements and understandings, written or oral, between the
parties with respect to the subject matter hereof. The invalidity, illegality or
unenforceability for any reason of any one or more provisions of this Agreement
shall not affect the validity, legality or enforceability of the remainder of
this Agreement.
4.13 Governing Law. This Agreement, and the respective rights,
duties and obligations of the parties hereunder, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to principles of conflicts of law thereunder.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of this 11th day of May, 1999.
ANGEION CORPORATION
By: /s/ Xxxxx X. Xxxxxx Xx.
-------------------------------------
Name: Xxxxx X. Xxxxxx Xx.
Title: President & CEO
ELA MEDICAL, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title:
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