Exhibit 10.53
CONTRIBUTION AND EXCHANGE
AGREEMENT
This Contribution and Exchange
Agreement, dated as of April 4, 2005 (the “ Agreement
”), is entered into by and among the institutional
stockholders listed on Schedule I hereto (each, a “
Stockholder ” and collectively, the “
Stockholders ”), ev3 LLC, a Delaware limited liability
company (“ ev3 LLC ”), ev3 Inc., a Delaware
corporation (the “ Company ”), and Micro
Therapeutics, Inc., a Delaware corporation (“ MTI
”). Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in Section 9.1 of
this Agreement.
R E C I T A L
S
WHEREAS , the Stockholders are the owners of the number
of shares of common stock, par value $0.001 per share, of MTI
(“ MTI Common Stock ”) set forth opposite such
Stockholders’ names on Schedule II hereto
(collectively, the “ MTI Shares ”), representing
all of the MTI Common Stock owned directly by the Stockholders (but
excluding any shares of MTI Common Stock the Stockholders may be
deemed to beneficially own by virtue of their respective ownership
of ev3 LLC);
WHEREAS , the Company intends to file a Registration
Statement on Form S-1 (the “ Registration Statement
”) with the SEC pursuant to which it will pursue the Initial
Public Offering of its common stock, par value $0.01 per share
(“ Company Common Stock ”);
WHEREAS , simultaneously with the execution of this
Agreement, the Company and ev3 LLC will enter into an agreement and
plan of merger (the “ Merger Agreement ”)
pursuant to which ev3 LLC will agree, on the terms and subject to
the conditions set forth in the Merger Agreement, to merge (the
“ Merger ”) with and into the Company with the
Company surviving the Merger, as more fully described in the Merger
Agreement;
WHEREAS , simultaneously with the execution of this
Agreement, the Company and certain noteholders named therein will
enter into a note contribution and exchange agreement (the “
Note Contribution Agreement ”) pursuant to which the
noteholders will agree, on the terms and subject to the conditions
set forth in the Note Contribution Agreement, to contribute to the
Company notes of ev3 Endovascular, Inc., which following the Merger
will be a wholly owned subsidiary of the Company, in exchange for
Company Common Stock, as more fully described in the Note
Contribution Agreement;
WHEREAS , on the terms and subject to the conditions set
forth in this Agreement, including, without limitation, Article VII
herein, effective at the Closing (as defined in Section 2.1) the
Stockholders desire to contribute to ev3 LLC, and ev3 LLC desires
to accept from the Stockholders, the shares of MTI Common Stock
owned by them as a contribution to capital (the “
Contribution ”), in exchange (the “
Exchange ”) for the issuance to the Stockholders of
the number of common membership units of ev3 LLC determined in the
manner set forth in Section 1.3 below (collectively, the “
Common Membership Units ”); and
WHEREAS , for the purpose of Section 203 of the Delaware
General Corporation Law (“ DGCL ”) and the
Rights Agreement, MTI desires to acknowledge the Contribution and
Exchange and make certain representations, warranties and covenants
related thereto.
NOW, THEREFORE
, in consideration of the premises
and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I.
CONTRIBUTION AND
EXCHANGE
Section 1.1. Contribution of
MTI Common Stock . On
the basis of the representations, warranties and agreements
contained herein, and subject to the terms and conditions hereof,
including, without limitation, the satisfaction (or waiver, to the
extent permitted by this Agreement and applicable law) of the
conditions set forth in Article VII of this Agreement, effective at
the Closing each of the Stockholders hereby agrees to contribute,
transfer, assign and convey to ev3 LLC all right, title and
interest in and to all of the shares of MTI Common Stock owned
directly by such Stockholder, which MTI Shares are set forth
opposite such Stockholder’s name on Schedule II
hereto, together with any and all rights, privileges, benefits,
obligations and liabilities appertaining thereto, reserving unto
such Stockholder no rights or interests therein whatsoever, to have
and to hold the same unto ev3 LLC and its heirs, legal
representatives, successors and assigns, from and after the Closing
to its own proper use forever.
Section 1.2. Acceptance of
Contribution . On the
basis of the representations, warranties and agreements contained
herein, and subject to the terms and conditions hereof, effective
at the Closing ev3 LLC hereby agrees to accept the Contribution of
the MTI Common Stock pursuant to Section 1.1.
Section 1.3.
Exchange . In
consideration of the Contribution by the Stockholders and on the
basis of the representations, warranties and agreements contained
herein, and subject to the terms and conditions hereof, on the
Closing Date and in exchange for the MTI Shares contributed to ev3
LLC pursuant to Section 1.1, ev3 LLC shall issue and deliver to
each Stockholder the number of Common Membership Units determined
by dividing (i) the product obtained by multiplying (A) the number
of shares of MTI Common Stock owned directly by such Stockholder
(as set forth opposite the respective Stockholder’s name on
Schedule II hereto) by (B) the quotient obtained by dividing
(1) the sum of the daily closing prices per share of MTI Common
Stock as quoted on the NASDAQ National Market (symbol
“MTIX”) and reported in The Wall Street Journal
(Northeast Edition), absent manifest error, for the twenty (20)
consecutive trading days from and including the date the
Registration Statement is first filed by the Company with the SEC
by (2) twenty (20), by (ii) the per share Split-Adjusted Midpoint
(as defined below). In the event the daily closing price per share
of MTI Common Stock as quoted on the NASDAQ National Market differs
from the daily closing price reported in The Wall Street Journal
(Northeast Edition), the daily closing price per share of MTI
Common Stock as quoted on the NASDAQ National Market shall control.
The “ Split-Adjusted Midpoint ” shall equal the
quotient obtained by dividing (i) the midpoint of the range of
estimated initial public offering prices as set forth on the cover
of the Preliminary Prospectus by (ii) the number of shares of
Company Common Stock necessary to obtain one share of Company
Common Stock in connection with the reverse split to be declared
with respect to Company Common Stock that is to take effect prior
to the consummation of the Initial Public Offering (the “
Reverse Split ”). For example, if the Preliminary
Prospectus states that the Company will effect a 1 for 5 Reverse
Split, clause (ii) of the definition of Split-Adjusted Midpoint
shall equal 5.
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Section 1.4. No Fractional
Units Notwithstanding
anything to the contrary contained herein, no certificates or scrip
representing fractional Common Membership Units shall be issued to
any Stockholder in connection with the Exchange. Instead, any
fractional Common Membership Units that a Stockholder would
otherwise be entitled to receive as a result of the Exchange shall
be rounded up to the nearest whole number of Common Membership
Units.
Section 1.5. Power of
Attorney . From and
after the Closing Date, each Stockholder constitutes and appoints
ev3 LLC, its successors and assigns, as the Stockholder’s
true and lawful attorney-in-fact, with full power of substitution,
in the name of ev3 LLC or in the name of the Stockholder, to
execute, deliver, file and/or record such documents, agreements and
instruments as shall be necessary or appropriate to effect the
Contributions pursuant to this Article I. The foregoing powers are
coupled with an interest and shall be irrevocable.
Section 1.6.
Characterization .
The Contribution, the transactions described in the Merger
Agreement and the Note Contribution Agreement and the
public’s purchase of stock in the Initial Public Offering are
part of an integrated plan and are intended together to qualify as
a tax-free transaction under Section 351 of the Internal Revenue
Code of 1986, as amended.
ARTICLE II.
CLOSING
Section 2.1. Closing
. The closing of the
transactions contemplated by this Agreement (the “
Closing ”) shall take place at 9:30 a.m., New York
City time, on a date as may be mutually agreed to by ev3 LLC and
the Stockholders that is within two (2) business days of the date
the Preliminary Prospectus is first filed by the Company with the
SEC (the “ Closing Date ”); provided ,
that on or before the Closing Date, all of the conditions set forth
in Article VII shall have been fulfilled or waived in accordance
with this Agreement, at the offices of King & Spalding LLP,
1185 Avenue of the Americas, New York, New York, or such other
location as ev3 LLC the Company and the Stockholders shall mutually
select.
Section 2.2. Closing
Deliveries . At the
Closing,
(a) Each Stockholder shall deliver
to ev3 LLC the stock certificates representing the MTI Shares being
contributed by such Stockholder, duly endorsed or accompanied by a
duly executed stock power, all in appropriate form and sufficient
for transfer of the MTI Shares to ev3 LLC.
(b) ev3 LLC shall deliver to each
Stockholder an amended Schedule B to the operating agreement
of ev3 LLC (the “ Operating Agreement ”)
reflecting the Contribution and Exchange as contemplated by Section
4.1 thereof.
(c) MTI shall deliver to ev3 LLC,
the Company and each Stockholder a certificate, dated the Closing
Date, of the Secretary of MTI certifying to and attaching the
resolutions of its Board of Directors and the Special Independent
Committee setting forth the authorizations and approvals
contemplated by Sections 5.2 and 5.3 of this Agreement.
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF
ev3 LLC
ev3 LLC represents and warrants to
each of the Stockholders as follows:
Section 3.1. Organization
. ev3 LLC is a limited
liability company duly organized, validly existing and in good
standing under the laws of the State of Delaware.
Section 3.2. Authority
. The Board of Managers
of ev3 LLC has authorized the execution, delivery and performance
of this Agreement and the transactions contemplated hereby,
including, without limitation, the issuance and delivery of the
Common Membership Units to the Stockholders in accordance with the
terms of this Agreement and the Operating Agreement. No other
action is necessary to authorize such execution, delivery and
performance, and upon such execution and delivery, this Agreement
shall constitute a valid and binding obligation of ev3 LLC,
enforceable against ev3 LLC in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditor’s rights
generally or by general principles of equity.
Section 3.3. Issuance of
Common Membership Units . The Common Membership Units to be issued by ev3
LLC pursuant to this Agreement, when issued in accordance with the
provisions hereof, will be validly issued by ev3 LLC, fully paid
and nonassessable, and no member of ev3 LLC has, or will have, any
preemptive rights to subscribe for any Common Membership
Units.
Section 3.4. Consents;
Conflicts . Except
with respect to filings made in connection with exemptions from
registration under state or federal securities laws, the creation,
authorization, issuance, offer and sale of the Common Membership
Units hereunder do not require any consent, approval or
authorization of, or filing, registration or qualification with,
any Person or governmental authority on the part of ev3 LLC or the
vote, consent or approval in any manner of the holders of any
security of ev3 LLC as a condition to the execution and delivery of
this Agreement or the creation, authorization, issuance, offer and
sale of the Common Membership Units hereunder. The execution and
delivery by ev3 LLC of this Agreement and the performance by ev3
LLC of its obligations hereunder will not violate (i) the terms and
conditions of the Operating Agreement of ev3 LLC, or any agreement
or instrument to which ev3 LLC is a party or by which it is bound
or (ii) subject to the accuracy of the Stockholders’
representations and warranties contained herein, including, without
limitation, the representations and warranties contained in Section
4.3 hereof, or any federal or state law.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDERS
Each of the Stockholders, severally
and not jointly, represents and warrants to ev3 LLC as
follows:
Section 4.1. Title to
Securities . The
Stockholder is the direct owner and holder of the respective number
of shares of MTI Common Stock set forth opposite such
Stockholder’s name on Schedule II hereto and has good
and valid title to such MTI Common Stock, free and clear of all
liens, claims and encumbrances.
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Section 4.2. Authority
. The Stockholder has
full right, power and authority to contribute, transfer, assign and
convey to ev3 LLC the full legal and beneficial ownership in the
MTI Common Stock to be surrendered by such Stockholder pursuant to
this Agreement and to consummate the transactions contemplated
herein. This Agreement has been duly and validly executed and
delivered by the Stockholder and is a legal, valid and binding
obligation of such Stockholder enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditor’s rights generally or by general principles of
equity. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby nor
compliance with any of the provisions hereof will (a) result in any
conflict with, breach of, or default (or give rise to any right of
termination, cancellation or acceleration) under any of the terms,
conditions or provisions of any agreement or other instrument or
obligation to which such Stockholder is a party or by which such
Stockholder or any of such Stockholder’s properties or assets
may be bound or (b) violate any order, writ, injunction, judgment,
decree, law, statute, rule or regulation applicable to such
Stockholder or any of such Stockholder’s properties or
assets. No action, consent or approval by, or filing with, any
federal, state, municipal, foreign or other court o
