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"); Associated Trust Company National Association, a corporate
fiduciary with its principal office located at Green Bay, Wisconsin (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 term of escrow under this Escrow Agreement shall run for a
period of three (3) years from the date of the Order of Registration. 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 the Escrowed Securities held under this
Escrow Agreement. Upon receipt of such release, the Escrow Agent may release
to each Depositor the Escrowed Securities in accordance with the order of the
Commissioner.
2. 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, except by will or the laws of descent and
distribution, the operation of law or otherwise by order or process of any
court of competent jurisdiction and proper venue. The transferred Escrowed
Securities shall remain subject to the terms of this Escrow Agreement.
3. 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.
4. 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.
5. 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 5 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 2) or otherwise disposed of, as a condition
of the release from escrow.
6. In the event of a dissolution, liquidation, merger, consolidation,
reorganization, sale or exchange of the Issuer's assets or securities
(including by way of tender offer), or any other transaction or proceeding
with a person who is a Promoter as defined in the North American Securities
Administrators Association Statement of Policy on Corporate Securities
Definitions, which results in a distribution of assets or securities of the
Issuer while this Escrow Agreement remains in effect, the Escrowed Securities
shall remain subject to the terms of this Escrow Agreement.
7. 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
4. 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 4.
8. 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.
9. 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.
10. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto, their heirs, successors and assigns.
11. 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 20,000 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
