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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 or governmental or administrative
body or agency, or any other regulatory or self-regulatory body, is
required in connection with the execution and delivery by the
Stockholder of this Agreement or the consummation by such
Stockholder of the transactions contemplated hereby.
Section 4.3. Accredited
Investor .
(a) Offering Exemption
. The Stockholder acknowledges that transfer of the Common
Membership Units pursuant to this Agreement has not been registered
under the Securities Act, nor registered or qualified under any
state securities laws, and that the Common Membership Units are
being offered and sold pur
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