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Exhibit
10.12
*** Text Omitted and Filed
Separately
Confidential Treatment
Requested
Under 17 C.F.R.
§§ 200.80(b)(4)
and 230.406
CONTRIBUTION
AGREEMENT
This Contribution Agreement
(this “ Agreement ”) is entered into as of
August 31st, 2000 (the “ Effective Date ”) by
and between CryoCor, Inc., a Delaware corporation (the
Company”), and Cryogen, Inc., a California corporation
(“ Cryogen ”).
BACKGROUND
A. Cryogen desires to
provide for the initial capitalization of the Company.
B. In accordance with
the terms and conditions of this Agreement, Cryogen desires to
contribute to the Company certain assets and intellectual property
rights for the development of products (“ Company
Products ”) for use in performing cardiac or vascular
ablation for the treatment of cardiac arrhythmias in consideration
of the issuance by the Company to Cryogen of a specified number of
shares of the Company’s Series A Convertible Preferred Stock
(the “ Series A Preferred Stock ”) and the
Company’s Common Stock (the “ Common Stock
”).
C. Following the
Closing (as hereinafter defined) of the transactions contemplated
hereby, Cryogen desires and intends to distribute (the “
Distribution ”) the Company Common Shares (as
hereinafter defined) and the Company Series A Shares (as
hereinafter defined) to its holders of equity securities, including
option holders and warrant holders (if an when exercised), in
proportion to their ownership of the common stock and preferred
stock of Cryogen, as the case may be, on an as-converted
basis.
D. Simultaneously with
the Closing of the transactions contemplated hereby, the Company
desires to issue shares of Series B Preferred Stock as set forth in
that certain term sheet (the “ Term Sheet ”),
dated June 16, 2000 between Cryogen and MPM Capital (the “
Series B Financing ”).
AGREEMENT
Now, therefore, in
consideration of the foregoing recitals, the mutual promises set
forth in this Agreement, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties to this Agreement agree as follows:
1. AGREEMENT TO ISSUE
STOCK AND GRANT RIGHTS.
1.1 Agreement to Issue
Stock.
(a) Authorization. On
the date of the Closing, the Company shall have authorized the
issuance, pursuant to the terms and conditions of this Agreement,
of a total of 1,604,166 shares of Common Stock and a total of
5,645,834 shares of Series A Preferred Stock. The Common Stock and
the Series A Preferred Stock shall have the rights, preferences,
privileges and restrictions as set forth in the Amended and
Restated Certificate of Incorporation of the Company in the form of
Exhibit A hereto (the “ Restated Certificate
”).
1.
(b) Shares. Subject to
the terms and conditions of this Agreement, on the date of the
Closing, the Company shall issue to Cryogen, and Cryogen agrees to
accept from the Company, (A) 1,604,166 shares of Common Stock (the
“ Company Common Shares ”) and (B) 5,645,834
shares of Series A Preferred Stock (the “ Company Series A
Shares ;” and together with the Company Common Shares,
the “ Shares ”).
1.2 Agreement to
Contribute Assets and Grant Rights, Etc.
(a) Assets and Other Items
to be Contributed and Rights to be Granted by Cryogen. Subject
to the terms and conditions of this Agreement, on the date of the
Closing, Cryogen shall:
(i) sell, assign,
transfer, convey and deliver to the Company all of Cryogen’s
right, title and interest in and to the assets, rights and
properties set forth on Exhibit B hereto (the “
Contributed Assets ”) and the clinical development
products set forth on Exhibit E hereto (the “
Contributed Clinical Development Products ”), free and
clear of all liens, encumbrances and security interests;
(ii) grant a license
to the Company (the “ License ”) for certain
intellectual property rights of Cryogen with respect to the
development of the Company Products (the “ Licensed
Technology ”) as set forth in the License Agreement
attached hereto as Exhibit C (the “ License
Agreement ”);
(iii) enter into a
Research and Development Agreement with the Company substantially
in the form attached hereto as Exhibit D (the “
Development Agreement ;” the License Agreement and the
Development Agreement are collectively referred to herein as the
“ Related Agreements ”);
(iv) sell, assign,
transfer, convey and deliver to the Company, and the Company shall
assume from Cryogen, all of Cryogen’s right, title and
interest in and to and all obligations under the agreements and
contracts for the production of certain molds listed on Exhibit
F hereto (the “ Purchased Molds Contracts ”)
and the right to delivery of the molds produced thereunder, free
and clear of all liens, encumbrances and security interests;
and
(v) sell, assign,
transfer, convey and deliver to the Company all of Cryogen’s
right, title and interest in and to the raw materials to be used to
develop and manufacture the Company Products (the “
Development Raw Materials ”), free and clear of all
liens, encumbrances and security interests.
2. CLOSING;
DELIVERY.
2.1
Closing.
(a) Closing. The
closing of the transactions contemplated hereby shall be held at
the offices of Brobeck, Phleger & Harrison LLP, 12390 El Camino
Real, San Diego, CA 92130 at 11:00 a.m. on August 24, 2000, or at
such other time and place as the Company and Cryogen may mutually
agree upon (the “ Closing ”).
2.
(b) Deliveries. At the
Closing, the Company shall deliver to Cryogen certificates
representing the Shares to be issued to Cryogen at the Closing
against delivery of a counterpart executed by Cryogen of each of
the License Agreement, the Development Agreement and such
assignments, bills of sale and other instruments as shall be
necessary to evidence the assignment, transfer, conveyance and
delivery to the Company of the Contributed Assets, the Contributed
Clinical Development Products, the Purchased Molds Contracts and
the Development Raw Materials and the assumption by the Company of
the CryoCor Employee Liabilities (as defined below), the Raw
Materials Liability (as defined below), and the liabilities and
obligations under the Purchased Mold Contracts (the “
Assignment and Assumption Documents ”). In addition,
within seven (7) days following the Closing, the Company shall (i)
pay the sum of $[…***…] in cash to Cryogen as
reimbursement for amounts actually heretofore paid by Cryogen to
the vendors of the Purchased Molds Contracts under the terms of the
Purchased Molds Contracts; (ii) pay to Cryogen the purchase price
for the Development Raw Materials (estimated as of the date hereof
to be approximately $[…***…]) (the “ Raw
Materials Liability ”), which such purchase price shall
be invoiced by Cryogen to the Company promptly after the Closing;
and (iii) reimburse Cryogen for the fees, costs and expenses
charged by Trinet Employer Group, Inc. (“ Trinet
”) and actually paid or payable by Cryogen with respect to
each of the CryoCor Employees (as such term is defined in
Section 6.3(a) hereof), including, costs and expenses for
payroll, payroll taxes, administrative fees, overtime and benefits
charged by Trinet, for the period beginning 12:00 p.m. California
time on August 4, 2000 through the date of the Closing (the “
CryoCor Employee Liabilities ”), which such fees,
costs and expenses will be invoiced by Cryogen to the Company
promptly after the Closing. Notwithstanding the foregoing, for
purposes of this Section 2.1(b) , “CryoCor
Employees” shall not be deemed to include any CryoCor
Employee who elects not to become an employee of the
Company.
3. COMPANY REPRESENTATIONS
AND WARRANTIES. The Company hereby represents and warrants to
Cryogen as follows:
3.1 Organization, Good
Standing and Qualification. The Company is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware and has all requisite corporate power and
authority to own its properties and assets and to carry on its
business as now conducted and as presently proposed to be
conducted. The Company has filed to become qualified to transact
business as a foreign corporation in the State of
California.
3.2 Power and Capacity;
Authorization. The company has the necessary corporate power
and authority to enter into, execute and deliver this Agreement and
the Related Agreements, to perform its obligations hereunder and
thereunder to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the
Related Agreements and the consummation of the transactions
contemplated hereby and thereby have been duly and validly
authorized by all required corporate action of the Company. This
Agreement and the Related Agreements have been executed and
delivered by the Company and constitute legal and binding
agreements enforceable against the Company in accordance with their
respective terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting creditors’ rights, and, with respect
to the remedy of specific performance, equitable doctrines
applicable thereto).
* Confidential Treatment
Requested
3.
3.3 Capitalization.
Immediately prior to the Closing, the authorized capital stock of
the Company consists of the following:
(a) Common Stock. A
total of 30,000,000 authorized shares of Common Stock, $0.001 par
value, none of which are issued and outstanding.
(b) Preferred Stock. A
total of 15,000,000 authorized shares of Preferred Stock, $0.001
par value, 5,645,830 of which are designated Series A Preferred
Stock and none of which are issued and outstanding and 4,861,111 of
which are designated Series B Preferred Stock and none of which are
issued outstanding.
(c) Options, Warrants,
Reserved Shares. Except as set forth on Schedule 3.3
hereto and for (i) the conversion privileges of the Series A
Preferred Stock to be issued hereunder and the Series B Preferred
Stock to be issued pursuant to the Series B Financing and (ii)
1,750,000 shares of Common Stock reserved for issuance under the
Company’s 2000 Stock Option Plan, there are no options,
warrants, conversion privileges or other rights, or agreements with
respect to the issuance thereof, presently outstanding to purchase
any of the capital stock of the Company.
3.4 Consents; No
Conflicts. The execution, delivery and performance of this
Agreement and the Related Agreements by the Company shall not: (a)
conflict with or result in a material breach of or default under
the Company’s Restated Certificate or Bylaws; (b) result in a
violation of any law, rule, ordinance, regulation, order, judgment
or decree by which the Company is bound; or (c) conflict with or
result in a material breach of or default under any mortgage, lien,
lease, license, permit, agreement, contract or instrument to which
the Company is a party or by which the Company is bound, which
conflict, breach or default would have a material adverse effect on
the Company’s ability to perform its obligations under this
Agreement.
3.5 Actions and
Proceedings. There are no outstanding orders, judgments,
injunctions, awards or decrees of any court, governmental or
regulatory body or arbitration tribunal against or involving the
Company. There are no actions, suits or claims or legal,
administrative or arbitral proceedings or, to the Company’s
knowledge, investigations (whether or not the defense thereof or
liabilities in respect thereof are covered by insurance) pending
or, to the Company’s knowledge, threatened against or
involving the Company.
3.6 Valid Issuance of
Stock.
(a) The Shares, when
issued, sold and delivered in accordance with the terms of this
Agreement, shall be duly and validly issued, fully paid and
non-assessable.
(b) All outstanding
shares of the capital stock of the Company are duly and validly
issued, fully paid and non-assessable.
3.7 Liabilities.
Except for indebtedness and reimbursements owed to Cryogen after
the Closing as provided in Section 2.1(b) hereof and amounts
payable to the vendors of the Purchased Molds Contracts, the
Company has no indebtedness for borrowed money that the Company has
directly or indirectly created, incurred, assumed, or guaranteed,
or with respect to which the Company has otherwise become directly
or indirectly liable.
4.
3.8 Exempt Offering.
Based in part upon on Cryogen’s representations in Section
4 , the offer and sale of the Shares to Cryogen pursuant to
this Agreement are exempt from the registration requirements of
Section 5 of the Securities Act of 1933, as amended (the
“Act” ), by virtue of Section 4(2)
thereof and from the qualification requirements of the California
Corporate Securities Law of 1968, as amended, by virtue of Section
25102(f) thereof.
3.9 Full Disclosure.
All documents and other papers delivered by or on behalf of the
Company in connection with this Agreement and the transactions
contemplated hereby are true and complete. No representation or
warranty of the Company contained in this Agreement, and to the
Company’s knowledge, no document or other paper finished by
or on behalf of the Company to Cryogen (or any of its agents)
pursuant to this Agreement or in connection with the transactions
contemplated hereby, taken as a whole, contains an untrue statement
of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements made, in the
context in which made, not false or misleading.
4. REPRESENTATIONS AND
WARRANTIES OF CRYOGEN TO THE COMPANY. Cryogen represents and
warrants to the Company as follows:
4.1 Organization and
Qualification. Cryogen is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of California and has all requisite corporate power and authority
to own its assets and properties and to carry on its business as
now being and as heretofore conducted.
4.2 Power and Capacity;
Authorization. Cryogen has the necessary corporate power and
authority to enter into, execute and deliver this Agreement and the
Related Agreements, to perform its obligations hereunder and
thereunder to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the
Related Agreements and the consummation of the transactions
contemplated hereby and thereby have been duly and validly
authorized by all required corporate action of Cryogen. This
Agreement and the Related Agreements have been executed and
delivered by Cryogen and constitute legal and binding agreements
enforceable against Cryogen in accordance with their respective
terms (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium and similar laws
affecting creditors’ rights, and, with respect to the remedy
of specific performance, equitable doctrines applicable
thereto).
4.3 Consents; No
Conflicts. Except with respect to that certain Subordinated
Loan and Security Agreement dated March 25, 1998 between Cryogen
and Comdisco, Inc. and all instruments executed in connection
therewith, that certain Master Lease Agreement dated August 25,
1997 between Cryogen and Comdisco, Inc. and all instruments
executed in connection therewith and that certain Master Loan and
Security Agreement dated January 28, 1999 between Cryogen and Lease
Management Services, Inc. and all instruments executed in
connection therewith (collectively, the “Debt
Documents” ), with respect to which Cryogen will
obtain waivers and/or consents at or prior to the Closing pursuant
to Section 7.1(k) hereof, the execution, delivery and
performance of this Agreement and the Related Agreements by
Cryogen
5.
shall not: (a) conflict with or result
in a breach of or default under Cryogen’s Articles of
Incorporation or Bylaws, as such may have been amended through the
date hereof; (b) result in a violation of any law, rule, ordinance,
regulation, order, judgment or decree by which Cryogen is bound; or
(c) conflict with or result in a breach of or default under any
mortgage, lien, lease, license, permit, agreement, contract or
instrument to which Cryogen is a party or by which Cryogen is
bound, which conflict, breach or default would have a material
adverse effect on Cryogen’s ability to perform its
obligations under this Agreement.
4.4 Actions and
Proceedings. There are no outstanding orders, judgments,
injunctions, awards or decrees of any court, governmental or
regulatory body or arbitration tribunal against or involving
Cryogen with respect to the Licensed Technology. Except as set
forth on Schedule 4.4 hereto, there are no actions, suits or
claims or legal, administrative or arbitral proceedings or, to
Cryogen’s knowledge, investigations (whether or not the
defense thereof or liabilities in respect thereof are covered by
insurance) pending or, to Cryogen’s knowledge, threatened
against or involving Cryogen with respect to the Licensed
Technology.
4.5 Intellectual
Property. Except for liens and encumbrances arising under the
Debt Documents or as otherwise set forth on Schedule 4.5
hereto, Cryogen owns all right, title and interest in and to the
Contributed Assets and all of the Licensed Technology to be
licensed (or sublicensed) by Cryogen to the Company pursuant to the
License Agreement, free and clear of all liens and encumbrances of
third parties. Cryogen has not granted any licenses or other rights
to any third party with respect to the Contributed Assets or any
Licensed Technology. Except for the matters set forth on
Schedule 4.4 hereto, (i) Cryogen has not received any
written notice or claim challenging its rights with respect to the
Contributed Assets or any Licensed Technology; (ii) there are no
actions, suits, or proceedings pending or, to the knowledge of
Cryogen, threatened, based on an allegation that the use or
practice of the Contributed Assets or any of the Licensed
Technology by Cryogen infringes or misappropriates the patents,
copyrights, trade secrets, trademarks or other intellectual
property of any third party; and (iii) to the knowledge of Cryogen,
the use or practice by Cryogen of the Contributed Assets or the
Licensed Technology has not infringed or resulted in the
misappropriation of any patent, copyright, trade secret or other
intellectual property rights of any third party.
4.6 Full Disclosure.
All documents and other papers delivered by or on behalf of Cryogen
in connection with this Agreeme
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