Exhibit 2.1
[Note: The following share purchase agreement
is attached to provide you with information regarding its terms and conditions.
It contains representations and warranties which are qualified by confidential
disclosure schedules that the parties exchanged in connection with the signing
and closing of the share purchase agreement.
It is not intended to provide any other factual information about
ABIOMED or Impella. Such information
about ABIOMED can be found in the other public filings ABIOMED makes with the
Securities and Exchange Commission, which are available without charge at
www.sec.gov.]
Execution Copy
SHARE PURCHASE AGREEMENT
BY AND AMONG
ABIOMED, INC.,
IMPELLA CARDIOSYSTEMS AG,
ACCELERATED TECHNOLOGIES, INC. AS THE STOCKHOLDERS
REPRESENTATIVE
AND
THE STOCKHOLDERS OF IMPELLA CARDIOSYSTEMS AG
SET FORTH ON
SCHEDULE I
DATED AS OF APRIL 26, 2005
SCHEDULES, APPENDIXES AND EXHIBITS:
|
Disclosure Schedule
|
ABIOMED Disclosure Schedule
|
Schedule I
|
Holders of Impella Outstanding
Capital Stock
|
Schedule II
|
Holders of Impella Options and
Impella Convertible Bonds
|
Appendix 6.8(b)
|
Sieß Non-Competition Agreement
|
Exhibit A
|
Wire Transfer
Instructions/Allocation of Consideration
|
Exhibit B
|
Escrow Agreement
|
Exhibit C1
|
Option Termination Agreements
|
Exhibit C2
|
Convertible Bond Termination
Agreements
|
Exhibit D1
|
Opinion of Fulbright &
Jaworski L.L.P.
|
Exhibit D2
|
Opinion of BFJM Bachem Fervers
Janßen Mehrhoff
|
Exhibit E
|
Käse Termination Agreement
|
Exhibit F
|
Registration Rights Agreement
|
Exhibit G
|
Opinion of Foley Hoag LLP
|
SHARE PURCHASE AGREEMENT
This Share Purchase Agreement (this
Agreement
), dated as of April 26,
2005, is entered into by and among ABIOMED, Inc., a Delaware corporation (
ABIOMED
),
Accelerated Technologies, Inc. as the Stockholders Representative
as defined below (the
Stockholders
Representative
) and the other persons named on Schedule I
attached hereto (collectively,
Impella
Stockholders
), and Impella
CardioSystems AG, a company organized under the laws of Germany having its
registered seat at Aachen, entered into the Commercial Registry of the Local
Court of Aachen under the number HRB 11786 (
Impella
,
together with ABIOMED and the
Impella Stockholders, the
Parties
).
WHEREAS, the board of directors of ABIOMED and
the supervisory board of Impella deem it advisable and in the best interests of
each corporation and their respective shareholders that ABIOMED acquire Impella
in order to advance the long-term business interests of ABIOMED and Impella;
WHEREAS, the acquisition of Impella shall be
effected through the sale of all of the outstanding shares of capital stock of
Impella in accordance with the terms of this Agreement, as a result of which
Impella shall become a wholly owned subsidiary of ABIOMED; and
WHEREAS, the shareholders of Impella have
approved this Agreement;
NOW, THEREFORE, in consideration of the
foregoing and the respective representations, warranties, covenants and
agreements set forth below, the Parties agree as follows:
1.1
.
Definitions
. In
addition to the terms defined elsewhere in this Agreement, including the
recitals, the following terms, when used herein, shall have the following
meanings:
18 Month Date
shall have the meaning defined in Section 2.4(a)(ii).
510(k)s
shall
have the meaning defined in Section 3.25(a).
ABIOMED Balance Sheet
shall have the meaning defined in Section 5.8.
ABIOMED Certificate
shall have the meaning defined in Section 8.3(e).
ABIOMED Common Stock
shall have the meaning defined in Section 5.3.
ABIOMED
Material Adverse Effect
means, when used in connection with
ABIOMED, any change, event, circumstance, development or effect that (a) is
materially adverse to the business, assets, liabilities, properties,
operations, prospects, condition (financial or otherwise), or results of
operations of ABIOMED or (b) would prevent or materially delay the ability
of ABIOMED to consummate the transactions contemplated by this Agreement and
the Related Documents;
provided
,
however
, that none of the
following shall be deemed in
themselves, either alone or in
combination, to constitute, and none of the following shall be taken into
account in determining whether an ABIOMED Material Adverse Effect has occurred:
(i) any adverse change, event, development or effect attributable to
Impella or any of its Affiliates as a result of the disclosure or pendency of
the transactions contemplated hereby (including any cancellations of or delays
in customer agreements, any reduction in sales, any disruption in supplier,
partner or similar relationships or any loss of employees); (ii) any
adverse change, event, development or effect arising from or relating to any
change in U.S. GAAP; (iii) any adverse change, event, development or
effect arising from or relating to laws, rules, regulations, orders or other
binding directives issued by any Governmental Authority that do not relate only
to ABIOMED and its Subsidiaries; (iv) a change in the U.S. economy or the
international economy; (v) a change caused by an act of war, sabotage or
terrorism, military action or escalation thereof to the extent it does not
physically damage ABIOMEDs facilities; or (vi) the effect on ABIOMED of
reasonable out-of-pocket fees or expenses (including legal and accounting fees
and expenses) incurred in connection with the transactions.
ABIOMED SEC Filings
shall have the meaning defined in Section 5.5.
Additional Consideration
shall have the meaning defined in Section 2.4(a)(ii).
Affiliate
shall mean a Person that directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under common control with,
the Person specified. For purposes of
this definition, the terms control, controlled by and under common control
with shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of such Person and, in the
case of an entity, shall require (a) in the case of corporate entities,
direct or indirect ownership of at least a majority of the stock or shares
having the right to vote for the election of directors, and (b) in the
case of non-corporate entities, direct or indirect ownership of at least a
majority of the equity interest with the power to direct the management and
policies of such non-corporate entities.
Agreed Amount
shall have the meaning defined in Section 9.3(c).
Agreement,
this Agreement,
hereto,
hereof,
hereunder,
hereby,
and similar expressions refer to this Agreement,
including the schedules, appendices and exhibits attached hereto, and not any
particular article, section, subsection or other subdivision hereof or
thereof.
Arbitrators
shall
have the meaning defined in Section 11.2.
Assets
shall
mean all of the assets, tangible and intangible, of Impella.
Business
shall
mean the business and operations carried out by or on behalf of Impella and its
subsidiaries before the Closing.
Business Vendors
shall have the meaning defined in Section 3.27(b).
Claim Notice
shall
have the meaning defined in Section 9.3(b).
Claimed Amount
shall have the meaning defined in Section 9.3(b).
2
Closing
shall have
the meaning defined in Section 2.2.
Closing Consideration
shall have the meaning
defined in Section 2.4(a).
Closing Date
shall have the meaning defined in Section 2.2.
Code
means the Internal Revenue Code of 1986, as amended.
Confidentiality Agreement
shall
have the meaning defined in Section 6.7(a).
Confidentiality and
Assignment Agreement
and
Confidentiality and
Assignment Agreements
shall have the meaning defined in Section 3.13(a)(v).
Consents from Ethics Committees
shall have the meaning defined in Section 3.25(a).
Consideration
shall mean the Closing Consideration, the Additional Consideration, the
Escrowed Consideration and the Contingent Consideration.
Consulting Agreement
shall have the meaning defined in Section 8.2(g).
Contingent Consideration
shall have the
meaning defined in Section 2.4(c).
Copyrights
shall have the meaning defined in the definition of Intellectual Property
Rights.
Corporate
Charter
shall mean with respect to Impella, its Articles of
Association, as amended to date, and, with respect to ABIOMED, its Restated
Certificate of Incorporation, as amended to date.
Damages
shall have the meaning defined in Section 9.1.
Disclosure Schedule
shall have the meaning defined in Article III.
Employee Benefit Plan
means any employee pension plan, any employee benefit plan and any other
written or oral plan, agreement or arrangement involving direct or indirect
compensation, including without limitation insurance coverage, severance
benefits, disability benefits, deferred compensation, bonuses, stock options,
stock purchase, phantom stock, stock appreciation or other forms of incentive
compensation or post-retirement compensation.
Environmental Laws
shall have the meaning defined in Section 3.24(e).
Escrow Account
shall have the meaning defined in Section 2.4(b).
Escrow Agent
shall have the meaning defined in Section 2.4(b).
Escrow Agreement
shall have the meaning defined in Section 2.4(b).
Escrowed Consideration
shall have the meaning defined in Section 2.4(b).
3
Exchange Act
shall mean the Securities Exchange Act of
1934, as amended.
Expected Claim
Notice
shall
have the meaning defined in Section 9.4.
Expenses
shall
have the meaning defined in Section 10.2(b).
Exploit
or
Exploitation
shall mean to manufacture, import, use, sell,
offer for sale, research, develop, commercialize, register, modify, enhance,
prepare derivative works, seek necessary or desirable regulatory approvals,
improve, formulate, export, transport, distribute, promote and market, practice
any patent rights or other intellectual property, and to have another person do
any of the same.
Family Member
shall mean: (i) with respect to any individual, such individuals spouse,
any ancestors, siblings or descendants (whether natural or adopted), any trust
all of the beneficial interests of which are owned by any of such individuals
or by any of such individuals together with any organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended, the estate of any such
individual, and any corporation, association, partnership or limited liability
company all of the equity interests of which are owned by those above described
individuals, trusts or organizations and (ii) with respect to any trust,
the owners of the beneficial interests of such trust.
FDA
shall mean
the United States Food and Drug Administration.
Financial Statements
shall have the meaning defined in Section 3.5.
German
GAAP
shall have the meaning defined in Section 3.5.
Governmental Authority
shall mean any nation, territory or government, foreign or domestic, any state,
local or other political subdivision thereof, and any bureau, tribunal, board,
commission, department, agency or other entity exercising executive,
legislative, judicial, regulatory or administrative functions of government,
including all taxing authorities and all European notification bodies and all
other entities exercising regulatory authority over medical products or devices
including any Notified Body and Ethics Committee as defined in any EU medical
device legislation.
Hazardous Substance
shall have the meaning defined in Section 3.24(e).
ICC Rules
shall
mean the Rules of Arbitration of the International Chamber of Commerce.
IDEs
shall have the meaning defined in Section 3.25(a).
Impella Certificate
shall have the meaning defined in Section 8.2(n).
Impella Convertible Bonds
shall have the meaning defined in
Section 2.5.
Impella
Material Adverse Effect
means, when used in connection with
Impella, any change, event, circumstance, development or effect that (a) is
materially adverse to the business,
4
assets, liabilities,
properties, operations, prospects, condition (financial or otherwise), or
results of operations of Impella or (b) would prevent or materially delay
the ability of Impella to consummate the transaction contemplated by this
Agreement and the Related Documents;
provided
,
however
, that none
of the following shall be deemed in themselves, either alone or in combination,
to constitute, and none of the following shall be taken into account in
determining whether an Impella Material Adverse Effect has occurred: (i) any
adverse change, event, development or effect attributable to ABIOMED or any of
its Affiliates as a result of the disclosure or pendency of the transactions
contemplated hereby (including any cancellations of or delays in customer
agreements, any reduction in sales, any disruption in supplier, partner or
similar relationships or any loss of employees, other than the Key Employee); (ii) any
adverse change, event, development or effect arising from or relating to any
change in German GAAP; (iii) any adverse change, event, development or
effect arising from or relating to laws, rules, regulations, orders or other
binding directives issued by any Governmental Authority that do not relate only
to Impella and its Subsidiaries; (iv) a change in the German economy, the
U.S. economy or the international economy; (v) a change caused by an act
of war, sabotage or terrorism, military action or escalation thereof to the
extent it does not physically damage the facilities of the Business; or (vi) the
effect on Impella of reasonable out-of-pocket fees or expenses (including legal
and accounting fees and expenses) incurred in connection with the
transactions. For the avoidance of
doubt, the Parties agree that the terms material, materially or materiality,
as used in this Agreement with an initial lower case m, shall have their
respective customary and ordinary meanings, without regard to the meaning
ascribed to Impella Material Adverse Effect or ABIOMED Material Adverse Effect,
as the case may be.
Impella Obligations
shall have the meaning defined in Section 3.20(a).
Impella Option
and
Impella Options
shall have the
meaning defined in Section 2.5.
Impella Outstanding Capital Stock
shall mean all of the following:
(a) the
number of Impella common shares, no par value per share, plus
(b) the
number of Impella Class A voting preference shares, no par value per share,
plus
(c) the
number of Impella Class B voting preference shares, no par value per
share, each share with a current notional value of 1.00, outstanding
immediately prior to the Closing.
Impella Persons
shall mean those employees, consultants, directors and advisers of Impella who
have in the past been or are engaged in the Business, including those engaged
in design, development, animal or clinical testing, obtaining regulatory
approval, manufacture, quality assurance, distribution or sale of any Product.
Impella Plans
shall have the meaning defined in Section 3.23(a).
Impella Property
shall have the meaning defined in Section 3.24(a).
5
Impella US
shall
mean Impella CardioSystems USA, Inc., a New York corporation and a
wholly-owned subsidiary of Impella.
Indemnification Cap
shall have the meaning defined in Section 9.5(b)(i).
Indemnified Party
shall have the meaning defined in Section 9.3(a).
Indemnifying Party
shall have the meaning defined in Section 9.3(a).
Insider
shall
mean any stockholder, director or officer of Impella and any Impella Person.
Intellectual Property
Rights
shall mean all of the following:
(a) all
Patent Rights;
(b) (i) all
registered and unregistered, unexpired domestic and foreign trademarks,
trademark registrations, trademark applications, trade names, brand names,
logos (whether or not registered), including artwork and typeface,
certification marks and service marks, owned by Impella; and (ii) all state
trademark registrations and applications therefor that are owned by Impella,
including any extension, modification or renewal of any such registrations or
applications and all common law rights in such trademarks, and any right to use
or exploit any of the foregoing, in each case of (i) and (ii) above,
including any goodwill associated therewith, including the foregoing identified
in Section 3.13(a) of
the Disclosure Schedule, and in each case of (i) and (ii) above, that
are material to the ongoing operation of the Business (the
Marks
);
(c) all
original works of authorship, including all copyrights and registrations or
applications for registration of copyrights in any jurisdiction, including any
renewals or extensions thereof, advertising materials, publications, technical
papers and computer software, instructional brochures, and any right to use or
exploit any of the foregoing, that are owned by Impella, including the
foregoing identified in Section 3.13(a) of
the Disclosure Schedule, and in each case that are material to the ongoing
operation of the Business (the
Copyrights
);
(d) all
distinctive features of the packaging of any Impella Product and any right to
use or exploit the foregoing that is material to the ongoing operation of the
Business (the
Trade Dress
);
(e) the
Product Specifications and Manufacturing Documentation and all intellectual
property disclosed or described therein; and
(f) the Trade
Secrets.
Anything herein to the contrary
notwithstanding, the term Intellectual Property Rights does not include the
rights to any third party intellectual property that are licensed or otherwise
used by Impella pursuant to contract.
ISO
shall mean
the International Standards Organization.
6
Issued Patents
shall have the meaning defined in Section 3.13(a)(iii).
Key Employee
shall
mean Dr. Thorsten Sieß.
Knowledge of Impella
shall mean the actual knowledge of each of Rolf Käse, Thorsten Sieß and Andreas
Dahlmann, without having conducted any independent investigation with respect
to the facts or circumstances referred to.
Lien
shall
mean any interest, consensual or otherwise, in property, whether real, personal
or mixed property or assets, tangible or intangible, securing an obligation
owed to, or a claim by a third Person, or otherwise evidencing an interest of a
Person other than the owner of the property, whether such interest is based on
common law, statute or contract, and including any security interest, security
title or lien arising from a mortgage, recordation of abstract of judgment,
deed of trust, deed to secure debt, encumbrance, restriction, charge, covenant,
restriction, claim, exception, encroachment, easement, right of way, license,
permit, incorporeal hereditament, pledge, conditional sale, option trust
(constructive or otherwise) or trust receipt or a lease, consignment or
bailment for security purposes and other title exceptions and encumbrances
affecting the property, except for Liens for Taxes not yet due and payable or
being contested in good faith.
Listed Agreements
shall have the meaning defined in Section 3.15(b).
Litigation Matter
shall mean any claim, investigation, arbitration, grievance, litigation,
action, suit or proceeding, administrative or judicial (whether Impella is a
plaintiff, defendant or otherwise), at law or in equity or otherwise, or before
any Governmental Authority or any arbitrator.
Machinery and Equipment
shall mean all machinery, equipment, furniture and fixtures (including, by way
of example, all dies, jigs, and tooling), owned, used or held for use or
planned to be used or held for use in connection with the design, development,
manufacture, operation, sale or use of any Product.
Manufacturing
Documentation
shall mean any and all patterns, plans, designs,
research data, formulae, technical information, blueprints, technical designs,
specifications, manufacturing processes, vendor and raw material and component
lists and specifications, quality testing procedures (including QA Procedures),
process validations, environmental control documentation, operating manuals,
blueprints, sketches, drawings, manuals, data, records, procedures, research
and development records, compositions, improvements, proposals, technical and
computer data, and related documentation, process descriptions and other
technical data (including chemical formulations, design specifications,
standard operating procedures and manufacturing protocols) used in or useful
for the development, manufacture or quality assurance testing of Products
(including any portions of such procedures that may be or have been outsourced
to others) and in each case that are material to the ongoing operation of the
Business. The Manufacturing Documentation
shall include all manufacturing documentation used or held for use by Impella
or any Subsidiary in the manufacture of the Products on or before the date of
this Agreement that are material to the ongoing operation of the Business. The
term
7
Manufacturing
Documentation
shall refer to the Manufacturing Documentation as
revised and updated through and including the Closing Date.
Marks
shall
have the meaning defined in the definition of Intellectual Property Rights.
MDRs
shall mean medical device reports of adverse events
required to be filed by medical device manufacturers and user facilities
pursuant to Regulatory Laws of jurisdictions in which human clinical studies
have been conducted (including observational studies) or other clinical use has
occurred.
Most
Recent Balance Sheet
shall have the meaning defined
in Section 3.5.
Most
Recent Balance Sheet Date
shall have the meaning
defined in Section 3.5.
Non-Competition Agreement
shall have the meaning defined in Section 6.8(b).
O
rdinary course of business
means
the ordinary course of Impellas business, consistent with past custom and
practice (including frequency and amount).
Patents
shall
consist of the Patent Rights (including patents, patent applications and other
intellectual property) relating to the Issued Patents or the Patent
Applications.
Patent Applications
shall have the meaning defined in Section 3.13(a)(iii).
Patent Rights
shall mean all unexpired German, United States and other
foreign patents, patent applications and disclosures of inventions and all
rights therein, and any improvements, continuations, continuations-in-part,
divisionals, extensions, reissues, patents of addition, reexaminations or
substitutions thereof, any subsequent filings in any country claiming priority
therefrom and any and all discoveries or inventions whether or not embodied
within the foregoing, and any right to use or Exploit any of the foregoing, in
each case that are owned by Impella or any Subsidiary, including the foregoing
identified in Section 3.13(a) of
the Disclosure Schedule.
Permits
shall
have the meaning defined in Section 3.25(a).
Permitted Transfer
shall have the meaning defined in Section 2.4(a)(ii).
Permitted Transferee
shall mean: (i) with respect to a partnership, its partners or former
partners in accordance with their partnership interests, (b) with respect
to a corporation, its stockholders in accordance with their interest in the
corporation, (c) with respect to a limited liability company, its members
or former members in accordance with their interest in the limited liability
company, (d) with respect to an individual party, any Family Member of
such party, (e) an entity that is controlled by, controls, or is under
common control with a transferor, or (f) a party to this Agreement.
Person
shall
mean an individual, corporation, partnership, limited partnership, limited
liability company, unincorporated association, trust, joint venture or other
organization or entity, including a Governmental Authority.
8
Premarket Approval
shall mean the authority to sell a medical device in the United States granted
by the FDA pursuant to 21 Code of Federal Regulations Section 814.20, as
amended.
Premarket Notification
shall mean the authority to sell a medical device in the United States granted
by the FDA pursuant to 21 Code of Federal Regulations Section 807.81, as
amended.
Products
shall mean all items manufactured by or for, sold or distributed by, or under
development by, Impella or any Subsidiary on or before the date of this
Agreement.
Pro Rata Share
shall mean for each Impella Stockholder, a fraction, the numerator of which is
the number of shares of Impella common shares, Class A voting preference
shares and Class B voting preference shares held by such Impella
Stockholder at the Closing, and the denominator of which is the total number of
Impella common shares, Class A voting preference shares and Class B
voting preference shares held by all Impella Stockholders at the Closing, as
set forth on
Exhibit A
.
PMAs
shall have the meaning defined in Section 3.25(a).
Product Specifications
shall mean the written description of each of the Products, including a
description of its design, raw materials and components and technical and
performance specifications, together with all related plans, drawings and
standard operating procedures. The
Product Specifications shall include all patterns, plans, designs, research
data, operating manuals, drawings, manuals, data, records, procedures and
research and development records, design history files, compositions, drawings,
specifications, improvements, proposals, technical and computer data, and
related documentation in each case that are owned by Impella or any Subsidiary
and used or held for use in the Business or in connection with any Product, and
in each case that are material to the ongoing operation of the Business. The term
Product
Specifications
shall refer to the Product Specifications as revised
and updated through the Closing Date.
QA Procedures
shall mean those quality assurance procedures and quality control tests that
have been established to ensure that all Products conform to and are
manufactured in accordance with the applicable Product Specifications and
Manufacturing Documentation, as well as QSR/GMP, EN46001 and ISO 9000
standards, European Medical Device Directives and all other applicable
requirements of any Governmental Authority.
QSR/GMP
shall
mean Quality Systems Regulations and Good Manufacturing Practices for medical
devices, as promulgated by the FDA, as in effect from time to time.
Reasonable Efforts
shall have the meaning defined in Section 6.1.
Registration Rights Agreement
shall
have the meaning defined in Section 8.2(m).
Regulatory Correspondence
shall have the meaning defined in Section 3.25(b).
9
Regulatory Law
shall mean any statute, regulation, judicial or administrative interpretation,
guideline, recommendation or standard international guidance relating to any
Regulated Product. Regulatory Law
includes the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301 et
seq., the FDA Modernization Act of 1997, Stand Alone Provisions, Pub. L. No. 105-115,
111 Stat. 2295 (1997), the Public Health Service Act, 42 U.S.C. § 201 et
seq., all regulations promulgated under such statutes, including 21 C.F.R. § 820,
the EU Directives 90/385/EEC, 93/42/EEC and 98/79/EEC and any laws, rules or
regulation promulgated by any Government Authority of any EU Member State in
furtherance of these Directives as well as equivalent statutes, regulations and
guidances adopted by countries, international bodies and other jurisdictions,
in addition to Germany, other EU Member States and the United States, where
Impella has facilities, does business, or directly or through others sells or
offers for sale any Regulated Product.
Regulated Product
shall mean any Product or component, including any medical device, that is
required to bear a CE Mark under applicable EU law and related national
legislation respectively or that is required to be cleared or approved by the
FDA, and that is studied, used, held or offered for sale for human use,
including for human research or investigation or clinical use.
Related Documents
shall mean the Non-Competition Agreement as defined in Section 6.8(b), the
Escrow Agreement, the Registration Rights Agreement, and the instruments of
transfer contemplated by Article VIII.
Releasee
and
Releasees
shall have the meaning defined in Section 2.8(g).
Representatives
shall have the meaning defined in Section 11.1.
Response
shall
have the meaning defined in Section 9.3(c).
Restricted Person
shall mean Dr. Thorsten Sieß.
Securities Act
shall mean the United States Securities Act of 1933, as amended.
Shareholders Agreement
shall mean the Shareholders Agreement, dated as of February 27, 2003, by
and among Impella and the shareholders named therein.
Standard
Terms
shall have the meaning defined in Section 3.20(a).
Stock Plans
shall
mean all stock option plans and other stock or equity related plans of Impella.
Stockholders Representative
shall have the meaning defined in Section 2.8(a).
Subsidiary
shall mean, and
Subsidiaries
collectively shall
mean any corporation or other entity as to which more than 50% of the
outstanding stock or other equity interest having ordinary voting rights or
power at the time is owned or controlled, directly or indirectly, by Impella.
10
Tax
or
Taxes
means any federal, state, local, or foreign income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental, customs duties, capital stock,
franchise, profits, withholding, social security (or similar) unemployment,
disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on minimum, estimated, or other
tax of any kind whatsoever, including any interest, penalty, or addition
thereto, whether disputed or not and including any obligations to indemnify or
otherwise assume or succeed to the Tax liability of any other person.
Tax Benefit
shall have the meaning defined in Section 9.5(d).
Tax Return
means any return, declaration, report, claim for refund, or information return
or statement relating to Taxes, including any schedule or attachment
thereto, and including any amendment thereof.
Termination Date
shall have the meaning defined in Section 10.1(b).
Third Milestone Date
shall
have the meaning defined in Section 2.4(c)(i)(C).
Trade Dress
shall have the meaning defined in the definition of Intellectual Property
Rights.
Trade Secret
shall mean all data and information owned by Impella or any Subsidiary and
maintained in confidence by Impella or any Subsidiary, including that data and
information which has been used, is used or held for use, or has been proposed
to be used by or for Impella for the design, development, manufacture,
operation, sale or use of any Product or relating to any Product or the
Business as currently conducted, as conducted in the past, or as proposed to be
conducted by Impella, including all related processes, plans, designs,
research, operating manuals, methods, compounds, formulae, discoveries,
developments, designs, drawings, technology, techniques, procedures, know-how,
specifications, inventions, customer and supplier lists, computer programs and
other scientific or technical data or information conceived, memorialized,
developed and/or reduced to practice, in each case whether or not patentable in
any jurisdiction, and in each case that are material to the ongoing operation
of the Business. Until such time as any
particular Patent Application has been published, the term
Trade Secrets
shall be deemed to include all inventions
disclosed in such Patent Application.
Transaction
shall mean the exchange of shares and other transactions contemplated by this
Agreement and the Related Documents.
Transaction
Documents
shall mean this Agreement and each of the Related
Documents.
U.S. Unaccredited Impella Stockholder
shall have the meaning defined in Section 2.4(f).
U.S. GAAP
shall mean United States generally accepted accounting principles.
11
U.S. Person
shall mean (i) any
natural person resident in the United States, (ii) any partnership or
corporation organized or incorporated under the laws of the United States, (iii) any
estate of which any executor or administrator is a U.S. Person, (iv) any
trust of which any trustee is a U.S. Person, (v) any agency or branch of a
foreign entity located in the United States, (vi) any non-discretionary
account or similar account (other than an estate or trust) held by a dealer or
other fiduciary for the benefit or account of a U.S. Person, (vi) any
discretionary account or similar account (other than an estate or trust) held
by a dealer or other fiduciary organized, incorporated, or (if an individual)
resident in the United States, and (vii) any partnership or corporation if
it is organized or incorporated under the laws of any foreign jurisdiction, and
was formed by a U.S. Person principally for the purpose of investing in
securities not registered under the Securities Act, unless it is organized or
incorporated, and owned, by accredited investors (as defined under the
Securities Act) who are not natural persons, estates or trusts.
ARTICLE II
.
Purchase and Sale of Shares
2.1
.
Agreement to Sell and Purchase.
Upon and subject to the terms and conditions
of this Agreement, the Impella Stockholders shall sell and deliver to ABIOMED,
and ABIOMED shall purchase and accept from the Impella Stockholders, all rights
to and interest in and to all the Impella Outstanding Capital Stock. The number of shares of Impella Outstanding
Capital Stock to be sold by each Impella Stockholder shall be as more
specifically set forth on
Schedule I
. All rights to accrued but unpaid dividends
with regard to the Impella Outstanding Capital Stock shall be transferred to,
and shall become the property of, ABIOMED upon transfer of the related Impella
Outstanding Capital Stock.
2.2
.
Closing
. The closing of
the transactions contemplated by this Agreement (the
Closing
) shall take place at the offices
of ABIOMEDs counsel in Boston, Massachusetts, USA and/or in Frankfurt,
Germany, on such mutually agreeable date and time as soon as practicable (and
in any event not later than three business days) after the satisfaction or
waiver of all conditions (excluding the delivery of any documents to be
delivered at the Closing by any of the Parties) set forth in Article VIII
hereof (the
Closing Date
).
2.3
.
Actions at
the Closing
. At the Closing:
(a) Impella
and the Impella Stockholders shall deliver to ABIOMED the various consents,
certificates, instruments and documents referred to in Section 8.2;
(b) ABIOMED
shall deliver to the Impella Stockholders the various certificates, instruments
and documents referred to in Section 8.3;
(c) Impella
Stockholders shall deliver to ABIOMED the certificate(s) representing their
respective Impella Outstanding Capital Stock;
(d) ABIOMED
shall deliver to Impella Stockholders the certificate(s) representing the
Closing Consideration (as defined in Section 2.4(a) below); and
12
(e) ABIOMED
shall deposit the Escrowed Consideration (as defined in Section 2.4(b) below)
with the Escrow Agent.
2.4
.
Payment of
Consideration.
(a)
Closing Consideration.
(i) At the
Closing, subject to reduction pursuant to Section 2.4(f), ABIOMED shall
deliver to the Impella Stockholders an aggregate amount of 4,035,544 shares of
ABIOMED Common Stock minus the number of shares included in the Escrowed
Consideration (the
Closing Consideration
),
which aggregate amount may be increased in accordance with the provisions of Section 2.4(a)(ii). At the Closing, ABIOMED shall deliver to the
Stockholders Representative on behalf of each Impella Stockholder, each
Impella Stockholders portion of the Closing Consideration as set forth on
Exhibit A
. ABIOMED shall have no obligation to deliver
any Impella Stockholders portion of the Closing Consideration, the Escrowed
Consideration, the Additional Consideration, or the Contingent Consideration
unless ABIOMED shall have first received from such Impella Stockholder one or
more stock certificates or global stock certificates representing the Impella
Outstanding Capital Stock held by such Impella Stockholder, duly endorsed in
blank, with any required transfer stamps affixed thereto,
provided
,
however
,
that if such stock certificates or global stock
certificates representing the Impella Outstanding Capital Stock held by such
Impella Stockholder have been lost or destroyed, such Impella Stockholder may
instead provide ABIOMED with written confirmation, reasonably satisfactory to
ABIOMED, that: (i) such Impella Stockholder has not transferred the
respective shares of Impella Outstanding Capital Stock; (ii) such Impella
Stockholder has not endorsed the respective shares of Impella Outstanding
Capital Stock; and (iii) if located, such Impella Stockholder will
immediately hand over such stock certificates or global stock certificates
representing the Impella Outstanding Capital Stock. Notwithstanding anything to the contrary
contained in this Agreement, ABIOMED shall have satisfied its obligation to
deliver the Closing Consideration and the Escrow Consideration at the Closing
if it shall have issued to its transfer agent, American Stock Transfer &
Trust Company, an irrevocable instruction to issue the Closing Consideration
and Escrow Consideration, setting forth the name and denomination of each stock
certificate to be so issued and any applicable transfer legends to be contained
thereon, and such transfer agent shall have confirmed to the Impella
Stockholders in writing the receipt of such instruction, in a customary form
reasonably satisfactory to the Impella Stockholders.
(ii) The
aggregate number of shares of ABIOMED Common Stock to be paid to the Impella
Stockholders shall be subject to adjustment as follows: if the average price per share of ABIOMED
Common Stock determined in accordance with this paragraph with respect to the
date 18 months after the Closing Date
(the
18 Month Date
) is
between US$15 and US$18, ABIOMED will pay the Impella Stockholders aggregate
additional consideration in an amount equal to (A) the difference between
US$18 and such average multiplied by (B) the difference between (x) 4.2
million shares and (y) the number of shares of ABIOMED Common Stock comprising
the Closing Consideration sold or transferred by any Impella Stockholder during
the period between the Closing and
13
the 18 Month
Date (the
Additional Consideration
),
it being understood that any Impella Stockholder having made such a sale or
transfer will not be entitled to any Additional Consideration with respect to
such sold shares of ABIOMED Common Stock.
For purposes of this Section, a sale or transfer of ABIOMED Common Stock
by an Impella Stockholder shall be deemed to occur at such time as such Impella
Stockholder is no longer the record owner of such shares as set forth on
ABIOMEDs stockholder records; provided that transfers by an Impella
Stockholder to any Permitted Transferee as a gift, partnership distribution or
other non-sale related transfer without consideration (a
Permitted Transfer
) shall not be
considered a sale or transfer for purposes of this subsection so long as (a) at
the time of such Permitted Transfer, ABIOMED and the Stockholders
Representative are given written notice by the Holder stating the name and
address of such Permitted Transferee and identifying the Closing Consideration
being so transferred, (b) such Permitted Transferee agrees in writing to
be bound by this Agreement, and (c) 10 days prior to the 18 Month Date,
the Stockholders Representative shall provide ABIOMED with an updated list of
all such Permitted Transferees and the number of shares of Closing
Consideration then owned by each such Permitted Transferee. ABIOMED will have two months after such 18
Month Date to determine whether such Additional Consideration will be paid in
cash, ABIOMED Common Stock or both. In
the event that ABIOMED elects to pay all or part of the Additional
Consideration in ABIOMED Common Stock, the value of such ABIOMED Common Stock
shall be deemed to be the average price of ABIOMED Common Stock as calculated
in this clause (ii). The average price
for purposes of this clause (ii) will be the average of the daily volume
weighted average price per share of ABIOMED Common Stock on the Nasdaq National
Market System, based on trading between 9:30 a.m. and 4:00 p.m.
Eastern Time, as reported by Bloomberg Financial L.P., on the twenty (20)
trading days before such 18 Month Date.
During the two weeks prior to and after the 18 Month Date, ABIOMED
shall, in good faith, not take, directly or indirectly, any action
intentionally designed to cause or result in stabilization or manipulation of
the price of the ABIOMED Common Stock for the purpose of reducing the
Additional Consideration payable hereunder.
Within 20 months of the Closing Date, ABIOMED shall pay to the
Stockholders Representative on behalf of each Impella Stockholder each Impella
Stockholders Pro Rata Share of the Additional Consideration; provided,
however, that for purposes of this payment, the Pro Rata Share of any Impella
Stockholder shall be equal to a fraction, the numerator of which is the number
of shares of ABIOMED Common Stock held by such Impella Stockholder as of the 18
Month Date, and the denominator of which is the number of shares of ABIOMED
Common Stock held by all Impella Stockholders as of the 18 Month Date. In the event that ABIOMED chooses to pay all
or a portion of the Additional Consideration in cash, ABIOMED shall pay such
portion of the Additional Consideration by wire transfer in accordance with
Exhibit A
.
(b)
Escrow
.
At the Closing, ABIOMED shall deliver to American Stock Transfer &
Trust Company, as escrow agent (or such other escrow agent as the parties shall
mutually agree, the
Escrow Agent
),
210,000 shares of ABIOMED Common Stock (the
Escrowed
Consideration
), which amount of Common Stock shall be placed into
an escrow account maintained by the Escrow Agent (the
Escrow
Account
). The Escrow Agent
shall maintain the Escrow Account for a minimum of eighteen (18) months in
accordance with the terms of the Escrow Agreement in substantially the form
attached as
Exhibit B
hereto (the
Escrow
14
Agreement
),
for the purpose of partially securing any amounts payable by the Impella
Stockholders to ABIOMED on account of any and all indemnification obligations
under Article IX hereof. The fees
and expenses of the Escrow Agent shall be borne fifty percent (50%) by ABIOMED
and fifty percent (50%) by the Impella Stockholders.
(c)
Contingent Consideration.
(i) ABIOMED
shall pay to the Impella Stockholders, as a contingent payment, an aggregate
amount of up to US$16.75 million (the
Contingent
Consideration
) in the event that certain milestones are achieved:
(A)
In the event
that Impellas 2.5 liter pump system is approved for sale in the U.S. by the
FDA under the Premarket Approval process, the Premarket Notification process,
or other administrative process of like effect, ABIOMED shall pay to the
Impella Stockholders an additional aggregate amount of US$5,583,333; and
(B)
in the event
that Impellas 5.0 liter pump system is approved for sale in the U.S. by the
FDA under the Premarket Approval process, the Premarket Notification process,
or other administrative process of like effect, ABIOMED shall pay to the
Impella Stockholders an additional aggregate amount of US$5,583,333; and
(C)
in the event
ABIOMED and its Affiliates and Subsidiaries have sold (other than to ABIOMED,
its Affiliates or Subsidiaries of ABIOMED)
at least 1,000 units of Impellas Products worldwide after the Closing
Date, but on or before December 31, 2007 (the
Third Milestone Date
), ABIOMED shall pay to the Impella
Stockholders an additional aggregate amount of US$5,583,334, such sales of
units to be calculated as of the end of each of ABIOMEDs fiscal quarters. Prior to December 31, 2007, ABIOMEDs
Chief Executive Officer shall certify to the Stockholders Representative in
writing no more than thirty
days
after the end of each ABIOMED fiscal quarter of the number of units of Impellas
Products that have been sold by ABIOMED and its subsidiaries since the Closing
Date as of the end of such fiscal quarter, which number of units shall be
determined in accordance with U.S. GAAP. At any time prior to the Third
Milestone Date, if ABIOMED has not notified the Stockholders Representative
that it has sold at least 1,000 units of Impellas Products, the Stockholders
Representative shall have the right, upon reasonable prior notice to ABIOMED
and at the Stockholders Representatives expense, to have an independent
accountant access the books, records and employees of ABIOMED and its
Subsidiaries as relevant or necessary to audit the sales of Impella Products by
ABIOMED and its subsidiaries through the end of the preceding ABIOMED fiscal
quarter. As a condition to such audit,
such independent accountant shall agree with ABIOMED not to disclose any
confidential information of ABIOMED (other than its determination of the number
of units sold, and its basis for determining this number, which may only be
disclosed to the Stockholders Representative).
If at any time the Stockholders Representative disagrees with any ABIOMED
certification of units sold, the Stockholders Representative shall
15
promptly
notify ABIOMED in writing, and the parties shall attempt to resolve any such
disagreement in accordance with Section 11.1; provided, however, if the
Representatives do not agree within thirty (30) days on units sold, ABIOMED and
the Stockholders Representative shall appoint an independent public accountant
of recognized standing to resolve the matter, and share the cost of such
accountant.
(ii) The
foregoing notwithstanding if the average price per share of ABIOMED Common
Stock, determined in accordance with this clause, with respect to the date of
achievement of any milestone is US$22 or more, no payment will be required with
respect to such milestone. If such
average price per share is between US$18 and US$22 on such date, the relevant
milestone payment amount set forth above will be reduced so that it equals (x)
the difference between US$22 and such average closing sale price divided by 4
multiplied by (y) such milestone payment amount. The average price per share for purposes of
this clause will be the average of the daily volume weighted average price per
share of ABIOMED Common Stock on the Nasdaq National Market System, based on
trading between 9:30 a.m. and 4:00 p.m. Eastern Time, as reported by
Bloomberg Financial L.P., on each of the twenty (20) trading days before and
twenty (20) trading days after the date of achievement of the relevant
milestone. During the two weeks after
the date of the achievement of any milestone, ABIOMED shall, in good faith, not
take, directly or indirectly, any action intentionally designed to cause or
result in stabilization or manipulation of the price of the ABIOMED Common
Stock for the purpose of reducing the Contingent Consideration payable
hereunder.
(iii) At
ABIOMEDs option any of the milestone payments described in Section 2.4(c)(i) above may be paid
in either ABIOMED Common Stock or cash or a combination of both;
provided
,
however
, that
if the aggregate amount of the milestone payments exceeds US$15 million, only
US$15 million may be paid in ABIOMED Common Stock and any remaining amounts due
must instead be paid in cash. In the
event that ABIOMED elects to pay all or a portion of any milestone payment
under Section 2.4(c)(i) in ABIOMED Common Stock, the value of such
ABIOMED Common Stock shall be deemed to be the average price per share
determined as of the date of achievement of the applicable milestone using the
same method as provided in Section 2.4(c)(ii) above for purposes of
such payment. The foregoing
notwithstanding, under no circumstances will ABIOMED deliver or be obligated to
deliver a number of shares of stock, whether under Sections 2.4(a), 2.4(b) or
2.4(c), that would require that ABIOMEDs stockholders would be or would have
been required to approve this transaction under applicable Nasdaq rules or
other securities laws. To the extent
that ABIOMED chooses not to pay any Additional Consideration or Contingent Consideration
in ABIOMED Common Stock under this Section 2.4, ABIOMED shall pay such
consideration in cash pursuant to Sections 2.4(a)(ii) or 2.4(c)(iv), as
the case may be.
(iv) Within
thirty (30) days following achievement of a milestone set forth in this Section 2.4(c),
ABIOMED shall pay to the Stockholders Representative on behalf of each Impella
Stockholder, each Impella Stockholders Pro Rata Share of the Contingent
Consideration as set forth on
Exhibit A.
In the event that ABIOMED chooses to pay all
16
or a portion
of Contingent Consideration in cash, ABIOMED shall pay such portion of the
Contingent Consideration by wire transfer with the written instructions set
forth on
Exhibit A.
(v) Each
of the parties hereto acknowledge and agree that it is their current desire and
intention that each of the milestones set forth in Section 2.4(c)(i) be
met by ABIOMED, its Affiliates and/or Subsidiaries after the Closing, and
ABIOMED covenants and agrees that after the Closing, it shall use commercially
reasonable efforts to achieve the milestones set forth in Section 2.4(c)(i) and
will not freeze or materially delay any of the projects related to such
milestones without good cause or reasonable business justification.
(d)
Certain Adjustments.
(i) All
per share price numbers and numbers of shares set forth in Sections 2.4(a)(ii) and
2.4(c)(ii) shall be appropriately adjusted in the case of stock splits,
stock dividends, combinations or similar events affecting ABIOMED Common Stock.
(ii) In
the event that at any time after the Closing Date ABIOMED Common Stock shall be
changed into the same or a different number of shares of any class or classes
of stock, whether by capital reorganization, reclassification, or otherwise
(other than a subdivision or combination of shares or stock dividend provided
for in the preceding subsection, or a merger, consolidation or sale of assets
provided for in the next subsection), then the Impella Stockholders shall be
entitled to receive, in lieu of the ABIOMED Common Stock they would otherwise
be entitled to receive pursuant to Sections 2.4(a)(ii) and 2.4(c)(ii), the
kind and amount of shares of stock and other securities and property receivable
upon such reorganization, reclassification or other change, by a holder of the
number of shares of ABIOMED Common Stock which the Impella Stockholders would
otherwise have received; and in such case, appropriate adjustment (as
determined in good faith by ABIOMEDs Board of Directors and the Stockholders
Representative ) shall be made to the per share price numbers and number of
shares set forth in Sections 2.4(a)(ii) and 2.4(c)(ii) and the
application of the other provisions of such sections to the end that the
provisions of such sections shall thereafter be applicable as nearly as
reasonably may be, in relation to any shares of stock or other property
thereafter deliverable pursuant to such sections.
(iii) In
the event that at any time after the Closing Date ABIOMED shall merge or
consolidate with or into another entity or sell substantially all of its
assets, then the Impella Stockholders shall be entitled to receive, in lieu of
the ABIOMED Common Stock they would otherwise be entitled to receive pursuant
to Sections 2.4(a) and 2.4(c), the kind and amount of shares of stock or
other securities or property receivable upon such merger, consolidation, or
sale of assets, by a holder of the number of shares of ABIOMED Common Stock
which the Impella Stockholders would otherwise have received; and in such case,
appropriate adjustment (as determined in good faith by the Board of Directors
of ABIOMED and the Stockholders Representative) shall be made to the per share
price numbers and number of shares set forth in Sections 2.4(a)(ii) and 2.4(c)(ii) and
the application of the other provisions of such sections to the end that the
17
provisions of
such sections shall thereafter be applicable as nearly as reasonably may be, in
relation to any shares of stock or other property thereafter deliverable
pursuant to such sections.
(e) Unless
ABIOMED has otherwise agreed or consented in writing, in addition to any
restrictions imposed by applicable law or other agreements, no Impella
Stockholder shall sell, transfer, hedge, pledge, hypothecate, assign or
otherwise convey any interest in (collectively, sell) any shares of ABIOMED
Common Stock received as Closing Consideration, Additional Consideration or
Contingent Consideration for a period of six (6) months following the date
such shares are issued (which in the case of the Closing Consideration shall be
deemed the Closing Date), at which point such restrictions shall lapse as to
fifty percent (50%) of such shares of ABIOMED Common Stock; and such
restrictions shall lapse as to one hundred percent (100%) of such shares of
ABIOMED Common Stock twelve (12) months after the date such shares are issued
(which in the case of the Closing Consideration shall be deemed the Closing
Date); and further provided that Permitted Transfers shall not be restricted
pursuant to this Agreement provided that such Permitted Transferee agrees in
writing to be bound by the terms of this Agreement.
(f)
U.S. Unaccredited Impella Stockholders
. Notwithstanding anything to the contrary in
this Agreement, to the extent that any Impella Stockholder is not an accredited
investor within the meaning of Rule 501 promulgated under the Securities
Act and such Impella Stockholders address listed on Schedule I is located
in the United States (a
U.S. Unaccredited Impella
Stockholder
), such U.S. Unaccredited Impella Stockholder:
(i)
shall not receive shares of ABIOMED Common Stock pursuant to any provision of
this Agreement;
(ii) whenever
the other Impella Stockholders receive ABIOMED Common Stock hereunder, such
U.S. Unaccredited Impella Stockholder shall receive an amount of cash equal to
the value of the number of shares of ABIOMED Common Stock that would have been
received by such U.S. Unaccredited Impella Stockholder in accordance with his,
her or its Pro Rata Share but for this Section 2.4(f), such value to be
determined for purposes of the Closing Consideration using the same method as
used with respect to the Escrow Consideration, and, in all other such cases,
such value to be determined using the applicable valuation method for the
Consideration being replaced as a result of this Section 2.4(f); and
(iii) the
aggregate number of shares of ABIOMED Common Stock to be delivered by ABIOMED
pursuant to this Section 2 shall be reduced by such number of shares of
ABIOMED Common Stock that would have been received by such U.S. Unaccredited
Impella Stockholder in accordance with his, her or its Pro Rata Share but for
this Section 2.4(f).
2.5
.
No Stock
Options or Convertible Bonds Outstanding.
Prior to the Closing, Impella shall take all necessary action
so that, as of the Closing Date, all previously outstanding stock options under
the stock option plans and agreements of Impella (individually, a
Impella Option
and collectively, the
Impella Options
), and all previously
18
outstanding convertible bonds,
each convertible bond with a par value of 1.00 (the
Impella Convertible Bonds
), shall have
been either exercised, cancelled or terminated, and accordingly, no Impella
Options or Impella Convertible Bonds shall be outstanding as of the Closing
Date. In consideration for the agreement
of each holder of Impella Options to cancel their Impella Options, ABIOMED shall
issue to each such holder a cash payment, subject to applicable withholding
taxes, as set forth in Schedule II hereto, in accordance with the terms of
an option termination agreement in substantially the form attached hereto as
Exhibit C1
(the
Option Termination Agreement
). In consideration for the agreement of each
holder of Impella Convertible Bonds to cancel their Impella Convertible Bonds,
ABIOMED shall issue to each such holder a cash payment, subject to applicable
withholding taxes, as set forth in Schedule II hereto, in accordance with
the terms of a convertible bond termination agreement in substantially the form
attached hereto as
Exhibit C2
(the
Convertible
Bond Termination Agreement
).
2.6
.
Further Action
. If, at
any time after the Closing, any further action is determined by ABIOMED to be
necessary or desirable to carry out the purposes of this Agreement, the Impella
Stockholders shall take all such action as reasonably requested by ABIOMED.
2.7
.
Taxes
. Notwithstanding
any other provision in this Agreement, ABIOMED shall have the right to withhold
Taxes from any payments to be made hereunder if such withholding is required by
law and to collect any necessary Tax forms from Impella Stockholders and
employees; provided that ABIOMED shall not withhold taxes from any payments hereunder
if no withholding is required under applicable laws or upon presentment of a
valid exemption certificate by an Impella Stockholder.
2.8
.
Stockholders Representative
.
(a)
Designation
. In order to carry out the terms of this
Agreement and to administer efficiently or effect the waiver of any condition
to the obligations of Impella Stockholders to consummate the transactions
contemplated hereby, and any amendment to this Agreement, the Impella
Stockholders hereby designate Accelerated Technologies, Inc., as their
representative and agent under this Agreement (the
Stockholders Representative
).
(b)
Authorization to Stockholders Representative
. The Impella Stockholders, solely in their
capacity as stockholders of Impella, hereby authorize and appoint the
Stockholders Representative their exclusive representative and attorney in
fact with respect to all matters arising out of this Agreement and the Related
Documents, and the Impella Stockholders shall not make any independent
agreement or arrangement with ABIOMED with respect to any such matter. In furtherance of the foregoing, the
Stockholders Representative shall be authorized, on behalf of the Impella
Stockholders, to: (i) receive and to distribute to Impella Stockholders in
accordance with this Agreement, all Consideration paid
to
the Stockholders Representative on behalf of the Impella Stockholders
hereunder, (ii) take all action necessary in connection with the waiver of
any condition to the obligations of Impella Stockholders to consummate the
transactions contemplated hereby, (iii) give and receive all notices
required to be given under the Agreement, (iv) settle any and all disputes
between Impella Stockholders and ABIOMED which may arise from time to time as a
result of the transactions contemplated hereby, (v) execute any and all
governmental and other forms relating
19
to Taxes and (vi) take any
and all additional action as is contemplated to be taken by or on behalf of
Impella Stockholders by the terms of this Agreement, including Article IX
hereof.
(c)
Removal and Replacement of Stockholders
Representative
. The Stockholders Representative may be removed by
delivery of thirty (30) days prior written notice to the Stockholders
Representative, the Impella Stockholders and ABIOMED by Impella Stockholders
(or their successors in the case of any Impella Stockholder who dies), holding,
prior to the Closing, a majority of the shares of Impella Outstanding Capital
Stock as set forth on Schedule I attached hereto. In the event that the Stockholders
Representative dies, or is removed pursuant to this subsection, or becomes
unable to perform his or its responsibilities hereunder or resigns from such
position, by delivery of ten (10) days prior written notice to the Impella
Stockholders, the Impella Stockholders (or their successors in the case of any
Impella Stockholder who dies) holding, prior to the Closing, a majority of the
shares of Impella Outstanding Capital Stock as set forth on
Schedule I
attached hereto, shall select a successor representative to fill such vacancy,
and such successor representative shall be deemed to be the Stockholders
Representative for all purposes of this Agreement. If for any reason any successor is unwilling
to serve as successor Stockholders Representative and if the Impella
Stockholders are unable to agree upon a successor or shall have failed to
appoint a successor prior to the expiration of thirty (30) days following the
date of the removal or notice of resignation, the then acting or immediately
former Stockholders Representative may appoint a successor representative and
any such resulting appointment shall be binding upon all the parties hereto.
(d)
Actions Binding
. All decisions and actions by the Stockholders
Representative hereunder shall be binding upon all Impella Stockholders, and no
Impella Stockholder shall have the right to object, dissent, protest or
otherwise contest the same.
(e)
Authority
.
By their adoption of this Agreement, the Impella Stockholders agree
that:
(i) each
of ABIOMED and Impella shall be able to rely conclusively on the instructions
and decisions of the Stockholders Representative as to any actions required to
be taken by the Stockholders Representative hereunder, and no Person shall
have any cause of action for any action taken by ABIOMED or Impella in reliance
upon the instructions or decisions of the Stockholders Representative;
(ii) all
actions, decisions and instructions of the Stockholders Representative shall
be conclusive and binding upon all Impella Stockholders, and no Impella
Stockholder shall have any cause of action against the Stockholders
Representative for any action taken or omitted, decision made or instruction
given by the Stockholders Representative arising out of or in connection with
the acceptance or administration of his duties hereunder, except for fraud or
willful breach of this Agreement or the Related Documents by the Stockholders
Representative;
(iii) the
provisions of this Section 2.8 are independent and severable, are
irrevocable and coupled with an interest and shall be enforceable,
notwithstanding any rights or remedies that any Impella Stockholder may have in
connection with the transactions contemplated by this Agreement;
20
(iv) remedies
available at law for any breach of the provisions of this Section 2.8 are
inadequate; therefore, ABIOMED and Impella shall be entitled to temporary and
permanent injunctive relief without the necessity of proving damages if any of
ABIOMED or Impella brings an action to enforce the provisions of this Section 2.8;
and
(v) the
provisions of this Section 2.8 shall be binding upon the executors, heirs,
legal representatives and successors of each Impella Stockholder, and any
references in this Agreement to an Impella Stockholder or Impella Stockholders
shall mean and include the successors to Impella Stockholders rights
hereunder, whether pursuant to testamentary disposition, the laws of descent
and distribution or otherwise.
(f)
Fees and Expenses
. All fees and expenses incurred by the
Stockholders Representative after the Closing shall be the responsibility of
Impella Stockholders on a pro rata basis and the Stockholders Representative
shall have the right to reimbursement of such fees and expenses from any cash
amounts to be distributed to Impella Stockholders.
(g)
Release and Indemnification of Stockholders Representative
. The following release and agreement to
indemnify shall survive the termination of this Agreement and Stockholders
Representatives duties hereunder, termination of the Escrow Account and the
removal or resignation of the Stockholders Representative. In consideration for the Stockholders
Representatives services hereunder, each Impella Stockholder hereby, on his,
her or its own behalf and on behalf of each of his, her or its officers,
directors, employees, shareholders, agents, representatives and Affiliates,
hereby releases and forever discharges the Stockholders Representative and
each of his individual, joint or mutual past, present and future directors,
officers, employees, shareholders, agents, consultants, advisors and other
representatives, including legal counsel, accountants and financial advisors,
controlling persons or entities, subsidiaries, successors and assigns (each,
individually a
Releasee
and, collectively, the
Releasees
) from any and all claims, demands, actions,
arbitrations, audits, hearings, investigations, litigations, suits (whether
civil, criminal, administrative, investigative or informal), causes of action,
orders, obligations, contracts, agreements, debts and liabilities whatsoever,
whether known or un known, suspected or unsuspected, both at law and in equity,
which such Impella Stockholder now has, has ever had or may hereafter have
against the respective Releasees, arising contemporaneously with, prior to or
after the Closing Date in connection with any actions of or failure to act by
the Stockholders Representative in its capacity as Stockholders Representative
pursuant to this Agreement, whether or not related to claims or proceedings
pending on, or asserted after the Closing Date;
provided
, that such
release shall not extend to any claims that such Impella Stockholder may have
arising solely from the commission of fraud by the Stockholders
Representative. Each Impella Stockholder
hereby irrevocably covenants to refrain from, directly or indirectly, asserting
any claim or demand, or commencing, instituting, causing to be commenced or
instituted, or being involved in, any action, arbitration, audit, hearing,
investigation, litigation or suit (whether civil, criminal, administrative,
investigative or informal) of any kind against any Releasee, based upon any
matter purporting to be released hereby. Without in any way limiting any of the rights
and remedies otherwise available to any Releasee, each Impella Stockholder
severally, on a pro-rata basis, shall fully indemnify and hold harmless each
Releasee from and against any loss, liability, claim, damage (including
consequential and incidental damages) or expense (including costs of
investigation and defense and reasonable attorneys fees) whether or not
involving third party
21
claims, arising directly or
indirectly from or in connection with (i) the assertion by or on behalf of
such Impella Stockholder of any claim or other matter purported to be released
hereby and (ii) the execution or performance of this Agreement or the
Escrow Agreement, other than such matters which arise solely from the
Stockholders Representatives commission of fraud. Each Impella Stockholder acknowledges and
agrees that each Releasee is an intended third party beneficiary of the release
set forth herein.
ARTICLE III
.
REPRESENTATIONS AND WARRANTIES OF IMPELLA
Impella hereby represents and warrants to
ABIOMED that the statements contained in this Article III are true and
correct as of the date hereof and will be true and correct as of the Closing
Date, except as expressly set forth herein or in the disclosure schedule delivered
by Impella to ABIOMED on or before the date of this Agreement or in any
supplement or amendment thereto delivered prior to the Closing and related to
matters that arose after the date of this Agreement pursuant to Section 6.3
hereof (the
Disclosure Schedule
).
The Disclosure Schedule shall be arranged in sections and paragraphs
corresponding to the numbered and lettered sections and paragraphs contained in
this Article III, and the disclosures in any section of the
Disclosure Schedule shall qualify any other specific individual section of
this Article III if and to the extent that it is readily apparent from a
reading of the disclosure that such disclosure is applicable to such other
section. All references to Impella in
this Article III shall be deemed to be references to Impella and its
Subsidiaries (other than in Sections 3.1 - 3.5).
3.1
.
Organization, Standing and Power; Subsidiaries
.
(a)
Organization
. Impella is an
Aktiengesellschaft
duly organized and validly existing under the laws of Germany, has all
requisite corporate power and authority to own, lease and operate its
properties and assets and to carry on its business as now being conducted, and
is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction where the character of its properties owned,
operated or leased or the nature of its activities makes such qualification
necessary, except for such failures to be so qualified that would not, individually
or in the aggregate, have an Impella Material Adverse Effect.
(b)
Interests in Other Entities
. Other than as set forth in Section 3.1(b) of
the Disclosure Schedule, Impella does not now own, and has not in the past
owned, directly or indirectly, any equity, membership, partnership or similar
interest in, or any interest convertible into or exchangeable or exercisable
for any equity, membership, partnership or similar interest in, any
corporation, partnership, joint venture, limited liability company or other
business association or entity, whether incorporated or unincorporated. Except
as set forth in Section 3.1(b) of the Disclosure Schedule, Impella
has not, at any time, been a general partner or managing member of any general
partnership, limited partnership or other entity.
(c)
Copies of Corporate Organizational Documents
. Impella has made available to ABIOMED
complete and accurate copies of the Corporate Charter of Impella.
(d)
Subsidiaries
. Section 3.1 of the
Disclosure Schedule sets forth for each Subsidiary (a) its name and
jurisdiction of organization, (b) the number of shares of authorized
22
capital stock of each class of
its capital stock, (c) the number of issued and outstanding shares of each
class of its capital stock, the names of the holders thereof and the number of
shares held by each such holder, (d) the number of shares of its capital
stock held in treasury, and (e) its directors and officers. Each Subsidiary is an entity with limited
liability duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization.
Each Subsidiary is duly qualified to conduct business and is in
corporate and tax good standing under the laws of each jurisdiction in which
the nature of its businesses or the ownership or leasing of its properties
requires such qualification, except where the failure to be so qualified would
not have an Impella Material Adverse Effect.
Each Subsidiary has all requisite corporate power and authority to carry
on the businesses in which it is engaged and to own and use the properties
owned and used by it. Impella has
delivered or made available to the Buyer correct and complete copies of the charter
and by-laws (or equivalent documents) of each Subsidiary, as amended to
date. Except as set forth in Section 3.1(d) of
the Disclosure Schedule, no Subsidiary of Impella is in default under or in
violation of any provision of its charter or by-laws. All of the issued and outstanding shares of
capital stock of each Subsidiary are duly authorized, validly issued, fully
paid, nonassessable and free of preemptive rights. All shares of each
Subsidiary that are held of record or owned beneficially by either Impella or
another Subsidiary of Impella are held or owned free and clear of any
restrictions on transfer (other than restrictions under federal, state and
foreign securities laws), claims, security interests, options, warrants,
rights, contracts, calls, commitments, equities and demands. There are no outstanding or authorized
options, warrants, rights, agreements or commitments to which Impella or any
Subsidiary is a party or which are binding on any of them providing for the
issuance, disposition or acquisition of any capital stock of any Subsidiary. Except as set forth in Section 3.1(d) of
the Disclosure Schedule, there are no outstanding stock appreciation, phantom
stock or similar rights with respect to any Subsidiary. Except as set forth in Section 3.1(d) of
the Disclosure Schedule, there are no voting trusts, proxies, or other
agreements or understandings with respect to the voting of any capital stock of
any Subsidiary. Impella does not control
directly or indirectly or have any direct or indirect equity participation in
any corporation, partnership, trust, or other business association which is not
a Subsidiary.
3.2
.
Capitalization
.
(a)
Shares
.
The
statutory capital stock
(Grundkapital)
of Impella amounts to 1,292,104.00 and
consists of (i) 305,779 common
shares, no par value per share, of which 305,779 shares are issued and
outstanding and no shares are held in the treasury of Impella, (ii) 890,596
Class A voting preference shares, no par value per share, of which 890,596
shares are issued and outstanding and no shares are held in the treasury of
Impella, and (iii) 95,729 Class B voting preference shares, no par
value per share, of which 95,729 shares are issued and outstanding and no shares
are held in the treasury of Impella.
Impella has, in addition, (i) an authorized capital (
Genehmigtes Kapital
) in an amount of 100,000.00 which
authorizes the Management Board of Impella, with the approval of its
Supervisory Board, to increase the statutory capital stock by up to 100,000 no
par value Class C voting preference shares; (ii) contingent capital I
(
Bedingtes Kapital I
) in an amount of
105,814.00 which shall be implemented only to the extent that holders of
Impella Stock Options exercise their option rights; and (iii) contingent
capital II (
Bedingtes Kapital II
) in an amount of
20,000.00 which shall be implemented only to the extent that holders of
Impella Convertible Bonds exercise their conversion rights.
23
(b)
Stock Ownership
. Section 3.2(b) of the Disclosure Schedule sets
forth a complete and accurate list of (i) all stockholders of Impella,
indicating the number and class or series of Impella Outstanding Capital Stock
held by each stockholder and (for shares other than common shares) the number
of common shares (if any) into which such Impella Outstanding Capital Stock are
convertible, (ii) all outstanding Impella Options and Impella Convertible
Bonds indicating (A) the holder thereof, (B) the number and class or
series of Impella common shares subject to each Impella Option and Impella
Convertible Bonds and (for Impella Outstanding Capital Stock other than common
shares) the number of common shares (if any) into which such Impella
Outstanding Capital Stock are convertible, (C) the exercise price, date of
grant, vesting schedule and expiration date for each Impella Option and (D) any
terms regarding the acceleration of vesting, and (iii) all Stock Plans of
Impella. All of the issued and
outstanding shares of Impella Outstanding Capital Stock are, and all common
shares that may be issued upon exercise of Impella Options or Impella
Convertible Bonds will be (upon issuance in accordance with their terms), duly
authorized, validly issued, fully paid, nonassessable and free of all
preemptive rights (except for any preemptive rights set forth in the
Shareholders Agreement). Other than
Impella Options, and Impella Convertible Bonds listed in Section 3.2(b) of
the Disclosure Schedule, there are no outstanding or authorized options,
warrants, rights, agreements or commitments providing for the issuance or
redemption of any of its capital stock to which Impella is or will be a party
or which are binding upon Impella.
Except as set forth in Section 3.2(b) of the Disclosure
Schedule, there are no outstanding or authorized stock appreciation, phantom
stock or similar rights with respect to Impella.
(c)
Securities Laws and Voting Rights
. Except as disclosed on Section 3.2(c) of
the Disclosure Schedule, and as contained in the Shareholders Agreement there
are no agreements to which Impella is a party or by which it is bound with
respect to the voting (including voting trusts or proxies), registration under
the Securities Act, admission for listing under the German Stock Exchange Act (
Börsengesetz
) or listing with any other over-the-counter
segment of any of the German stock exchanges, or sale or transfer (including
agreements relating to preemptive rights, rights of first refusal, co-sale
rights or drag-along rights) of any securities of Impella. To the Knowledge of Impella, there are no
agreements among other parties, to which Impella is not a party and by which it
is not bound, with respect to the voting (including voting trusts or proxies)
or sale or transfer (including agreements relating to rights of first refusal,
co-sale rights or drag-along rights) of any securities of Impella. All of the issued and outstanding Impella
Outstanding Capital Stock were issued in compliance with applicable federal and
state securities laws.
(d)
No Consents Required
. Except with respect to the actions
contemplated by Section 2.5 hereto, no consent of the holders of Impella
Options or Impella Convertible Bonds is required in connection with actions
contemplated by this Agreement.
3.3
.
Authorization of Transaction
.
Impella has all requisite corporate power and authority to execute and
deliver this Agreement and the Related Documents and to perform its obligations
hereunder and thereunder. The execution
and delivery by Impella of this Agreement and the Related Documents and the
consummation by Impella of the transactions contemplated hereby and thereby
have been duly and validly authorized by all necessary corporate action on the
part of Impella. Assuming that this
Agreement and the Related Documents constitute, or upon their execution, will
constitute valid and binding agreements of ABIOMED and the other
24
parties thereto, this Agreement
and the Related Documents to which Impella is or will be a party evidence, or
upon their execution and delivery will evidence, the legal, valid and binding
obligations of Impella, enforceable against Impella in accordance with their
respective terms, subject to bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws relating to or affecting the rights and
remedies of creditors generally. This
Agreement has been duly executed and delivered by Impella and each of the Related
Documents to which Impella is or will be a party will have been duly and
validly executed and delivered by Impella, as of the date on which such Related
Document is to be executed and delivered.
3.4
.
No Default
or Violation
. The execution,
delivery and performance of this Agreement and the Related Documents by Impella
do not and will not (a) violate or require any registration,
qualification, consent, approval, or filing under, (i) any law, statute,
ordinance, rule or regulation, or (ii) any judgment, injunction,
order, writ or decree of any court, arbitrator or Governmental Authority by
which Impella or any of its assets or properties may be bound, or (b) conflict
with, require any consent, approval, or filing under, result in the breach or
termination of any provision of, constitute a default under, result in the
acceleration of the performance of Impellas obligations under, result in the
vesting or enhancement of any other Persons rights under, or result in the
creation of any lien upon any of Impellas properties, assets, or businesses pursuant
to (x) Impellas Corporate Charter or (y) any material indenture,
mortgage, deed of trust, license, permit, approval, consent, franchise, lease,
contract, or other instrument or agreement to which Impella is a party or by
which Impella or any of Impellas properties or assets is bound, except those
matters for which a consent or waiver has been obtained. No moratorium, control share, fair price
or other antitakeover law or regulation of any Governmental Authority
is applicable to the Transaction or any of the Related
Documents.
3.5
.
Financial Statements
.
Impella has provided to ABIOMED (a) the audited consolidated
balance sheets and statements of income, changes in stockholders equity and
cash flows of Impella and its Subsidiaries as of and for each of the two fiscal
years in the period ended December 31, 2004, and (b) the unaudited
consolidated balance sheet (the
Most Recent
Balance Sheet
) and statements of income, changes in stockholders
equity and cash flows as of and for the three months ended March 31, 2005
(the
Most Recent Balance Sheet Date
).
Such financial statements (collectively, the
Financial
Statements
) have been prepared in accordance with generally
accepted accounting principles in Germany (
German GAAP
),
applied on a consistent basis throughout the periods covered thereby (except as
may be set forth in the notes thereto), fairly present in all material respects
the financial condition, results of operations and cash flows of Impella and
its Subsidiaries as of the respective dates thereof and for the respective
periods referred to therein and are consistent with the books and records of
Impella and its Subsidiaries;
provided,
however
, that the unaudited Financial Statements referred to in
clause (b) above do not include footnotes and are subject to normal
recurring adjustments (none of which will be material). The audits of Impella have been conducted in
all material respects in accordance with German generally accepted auditing standards. Except as set forth in Section 3.5 of
the Disclosure Schedule, the Financial Statements have been prepared from the
books and records of Impella and its Subsidiaries and the books and records of
Impella and its Subsidiaries have been, and are being, maintained in all
material respects in accordance with applicable legal requirements including
the
Deutsche Handelsgesetzbuch
(German
Commercial Code).
25
3.6
.
Absence of Certain Changes
.
Except as contemplated by this Agreement or as reflected on the Most
Recent Balance Sheet or on the statements of income, changes in stockholders
equity and cash flows as of and for the three months ended March 31, 2005,
since December 31, 2004 there has not occurred:
(a) any
material damage, destruction or loss with respect to any property or asset of
Impella;
(b) any
change by Impella in its accounting methods, principles or practices, other
than (i) as set forth in Section 3.6 of the Disclosure Schedule or
(ii) changes required by applicable law or German GAAP or regulatory
accounting as concurred in by Impellas independent accountants;
(c) any
revaluation by Impella of any asset, including any writing down of the value of
inventory or writing off of notes or accounts receivable, other than in the
ordinary course of business;
(d) except as
set forth in Section 3.6(d) of the Disclosure Schedule, any entry by
Impella into any contract or commitment of more than 10,000, excluding
contracts or commitments with respect to the sale of goods in the ordinary
course of business;
(e) any
declaration, setting aside or payment of any dividend or distribution in
respect of any equity interest of Impella, or any redemption, purchase or other
acquisition of any of its securities;
(f) except as
set forth in Section 3.6(f) of the Disclosure Schedule, any increase
in or establishment of any bonus, insurance, severance, deferred compensation,
pension, retirement, profit sharing, stock option (including the granting of
stock options, stock appreciation rights, performance awards, or restricted
stock awards), stock purchase or other employee benefit plan, or any other
increase in the compensation payable or to become payable to any directors,
officers or employees of Impella or any of its Subsidiaries, or any grant of
severance or termination pay, or any contract or arrangement entered into to
make or grant any severance or termination pay, any payment of any bonus, or
the taking of any other material action not in the ordinary course of business
with respect to the compensation or employment of directors, officers or
employees of Impella;
(g) any
strike, work stoppage, slowdown or other labor disturbance;
(h) any
material election made by Impella for federal or state income tax purposes;
(i) any
material liability or obligation of any nature (whether accrued, absolute,
contingent or otherwise and whether due or to become due), including
liabilities as guarantor under any guarantees or liabilities for Taxes, other
than in the ordinary course of business;
(j) any
forgiveness or cancellation of any material indebtedness or material
contractual obligation;
26
(k) any mortgage,
pledge, lien or lease of any assets, tangible or intangible, of Impella with a
value in excess of 10,000 in the aggregate;
(l) except as set
forth in Section 3.6(l) of the Disclosure Schedule, any acquisition or disposition
of any assets or properties (not including any raw materials or inventory
acquired or disposed of in the ordinary course of business) having a value in
excess of 10,000, or any contract for any such acquisition or disposition
entered into;
(m) any lease of
real or personal property entered into; or
(n) any other
event or development which, individually or in the aggregate, has had, or could
reasonably be expected to have in the future, an Impella Material Adverse
Effect.
3.7
.
Undisclosed Liabilities
.
Impella does not have any liability (whether absolute or contingent,
whether liquidated or unliquidated and whether due or to become due), except
for (a) liabilities shown on the Most Recent Balance Sheet, (b) liabilities
that have arisen since December 31, 2004 in the ordinary course of
business and (c) contractual liabilities incurred in the ordinary course
of business which are not required by German GAAP to be reflected on a balance
sheet. Except as disclosed on Section 3.7
of the Disclosure Schedule, Impella does not and will not have any obligations
for warranty repair or replacement, or otherwise in connection with the sale of
materials, Products, services or supplies which exceed 20,000 in the
aggregate.
3.8
.
Tax Matters.
(a) Impella
has filed all Tax Returns that it was required to file. All such Tax Returns were correct and
complete in all material respects and have been prepared in compliance with all
applicable laws and regulations. All
Taxes due and owing by Impella (whether or not shown on any Tax Return) have
been paid. Impella is not currently the beneficiary of any extension of time
within which to file any Tax Return. No
claim has ever been made in writing by an authority in a jurisdiction where
Impella does not file Tax Returns that it is or may be subject to taxation by
that jurisdiction. There are no Liens
for Taxes (other than Taxes not yet due and payable) upon any of the assets of
Impella.
(b) Impella has
withheld and paid all Taxes required to have been withheld and paid in
connection with any amounts paid or owing to any employee, independent
contractor, creditor, stockholder, or other third party.
(c) To the
Knowledge of Impella, Impella does not expect any authority to assess any
additional Taxes for any period for which Tax Returns have been filed. No foreign, federal, state, or local tax
audits or administrative or judicial Tax proceedings are pending or being
conducted with respect to Impella. Impella
has not received from any foreign, federal, state, or local taxing authority
(including jurisdictions where Impella has not filed Tax Returns) any (a) written
notice indicating an intent to open an audit or other review, (b) request
for information related to Tax matters, or (c) notice of deficiency or
proposed adjustment for any amount of Tax proposed, asserted, or assessed by
any taxing authority against Impella; Section 3.8(c) of the
Disclosure Schedule lists all federal, state, local, and foreign income
Tax Returns filed with respect to Impella for taxable periods ended on or after
December 31, 1999, indicates those Tax Returns that have been audited, and
indicates those Tax Returns that are currently the subject of audit. Impella has delivered to ABIOMED correct and
complete copies of all federal
27
income Tax Returns, examination
reports, and statements of deficiencies assessed against or agreed to by
Impella filed or received since December 31, 1999.
(d) Impella
has not waived any statute of limitations in respect of Taxes or agreed to any
extension of time with respect to a Tax assessment or deficiency.
(e) Impella
US has not filed a consent under Code section 341(f) concerning
collapsible corporations. Impella US is
not a party to any agreement, contract, arrangement or plan that has resulted
or would result, separately or in the aggregate, in the payment by Impella US
of (a) any excess parachute payment within the meaning of Code section 280G
in connection with the consummation of the transactions contemplated by this
Agreement and the Related Documents that will fail to be deductible by virtue
of Code section 280G. Impella US
has not been a United States real property holding corporation within the
meaning of Code section 897(c)(2) during the applicable period
specified in Code section 897(c)(1)(A)(ii). Impella US has disclosed on its United States
federal income Tax Returns all positions taken therein that could give rise to
a substantial understatement of federal income Tax within the meaning of Code section 6662. Impella is not a party to or bound by any Tax
allocation or sharing agreement. Impella
US (A) has not been a member of an Affiliated Group filing a consolidated
federal Income Tax Return and (B) has no liability for the Taxes of any
Person under Treas. Reg. section 1.1502-6 (or any similar provision of
state, local, or foreign law), as a transferee or successor, by contract, or
otherwise.
(f) The
unpaid Taxes of Impella (A) did not, as of the most recent fiscal month
end, exceed the reserve for Tax liability (rather than any reserve for deferred
Taxes established to reflect timing differences between book and Tax income)
set forth on the face of the Most Recent Balance Sheet (rather than in any
notes thereto) and (B) do not exceed that reserve as adjusted for the
passage of time through the Closing Date in accordance with the past custom and
practice of Impella in filing its Tax Returns.
Since the date of the Most Recent Balance Sheet, Impella has not
incurred any liability for Taxes arising from extraordinary gains or losses, as
that term is used in German GAAP, outside the ordinary course of business
consistent with past custom and practice.
(g) Impella
has not participated in or cooperated with, nor will it, prior to the Closing
Date, participate in or cooperate with, any international boycott within the
meaning of section 999 of the Code.
(h) Except as
set forth in Section 3.8 of the Disclosure Schedule, there has been and
will be no transaction in the Company or its Subsidiaries up to and including
the date of Closing which qualifies for tax purposes as a hidden distribution
of profit/deemed dividend
(verdeckte
Gewinnausschüttung
) under German law. All legal relations between the Company and
its shareholders, Affiliates and/or persons within the meaning of Section 1(2) of
the German Foreign Transactions Tax Act (
Außensteuergesetz
)
comply with the arms-length principle.
3.9
.
Assets
. Impella owns or
leases all tangible assets (other than real property) necessary for the conduct
of its businesses as presently conducted and will enable Impella to operate the
Business immediately after the Closing Date in the same manner as operated
prior to and as of the Closing Date. Each
such tangible asset (other than real property) is in good
28
operating condition and repair
(subject to normal wear and tear) and is suitable for the purposes for which it
presently is used. Impella is not, and
ABIOMED will not be, restricted from carrying out its business as currently
conducted or any part thereof by any agreement, instrument, indenture or court
or arbitrational decree to which Impella is a party or to which Impella or its
assets (other than real property) are subject.
Impella has good and marketable title to all of the assets (other than
real property) used or held for use in connection with the Products or the
Business, free and clear of all Liens.
Except as set forth in Section 3.9 of the Disclosure Schedule, none
of the Assets is in the possession, custody or control of any Person or entity
other than Impella.
3.10
.
Matters
Relating to Products and the Assets
.
(a) Impella
has disclosed to ABIOMED
(i) All
sole sources of supply for any raw material, supply or component part required
in connection with any Product or the Business, indicating the contractual
arrangements for continued supply from each such Person, and to the Knowledge
of Impella, whether practical alternative sources of supply are available on
comparable terms and conditions;
(ii) All
locations at which Assets are located (including locations owned or controlled
by third parties);
(iii) All
locations at which any Product clinical or other trials (including observational
studies) are being conducted.
(b) Impella
has granted access to, or made available to ABIOMED a true, correct and
complete copy of full documentation in Impellas possession, relating to all
present and past Product clinical or other human trials (including
observational studies), consistent with the Health Insurance Portability and
Accountability Act of 1996 (HIPPA), as amended, and other such laws governing
privacy of human subjects.
(c) With respect to any raw material, supply or
component part for which Impella relies on a single source of supply, Impella
has no reason to believe that, after the Closing, Impella would not be able to
obtain such item(s) from the sole source supplier(s) on comparable terms and in
reasonably sufficient amounts to conduct the Business in the ordinary course.
(d) Attached
as Section 3.10(d) of the Disclosure Schedule is a true, correct
and complete list of the Machinery and Equipment as of the date of this
Agreement, including, with respect to each item, the original cost, the
acquisition date, the accumulated depreciation and the net book value. Such list will be updated and delivered at
the Closing.
(e) Attached
as Section 3.10(e) of the Disclosure Schedule is a true, correct
and complete list of all open customer orders as of the date of this
Agreement. Such list will be updated and
delivered at the Closing.
(f) Impella
has delivered to ABIOMED a true, correct and complete schedule of
historical sales information for the 12 full calendar months preceding the date
of this Agreement,
29
including customer name,
Products purchased (including quantity) by such customer during such 12-month
period and the average selling price paid by such customer for each Product
purchased. Such list will be updated and
delivered at the Closing.
(g) The
Product Specifications and Manufacturing Documentation (a copy of which has
been made available to ABIOMED) is complete and accurate. The Product Specifications and Manufacturing
Documentation includes all data and know-how used or held for use by Impella to
manufacture the Products before the Closing and is current, accurate in all
material respects, and sufficient in detail and content to identify and explain
the designs, concepts and processes described therein and to permit a
reasonably skilled person to manufacture any Product immediately following the
Closing without requiring assistance or information from Impella or any other
Person.
3.11
.
Owned Real Property
.
Impella owns no real property.
3.12
.
Real Property Leases
. Section 3.12
of the Disclosure Schedule lists all real property leased or subleased to
or by Impella. Impella has delivered to
ABIOMED complete and accurate copies of the leases and subleases listed in Section 3.12
of the Disclosure Schedule. Except as
set forth in Section 3.12 of the Disclosure Schedule, with respect to each
lease and sublease listed in Section 3.12 of the Disclosure Schedule:
(a) as to
Impella, the lease or sublease is legal, valid, binding, enforceable and in
full force and effect;
(b) as to
Impella, the lease or sublease will continue to be legal, valid, binding,
enforceable and in full force and effect immediately following the Closing in
accordance with the terms thereof as in effect immediately prior to the
Closing;
(c) to the
Knowledge of Impella, (i) neither Impella nor any other party, is in
breach or violation of, or default under, any such lease or sublease, and (ii) no
event has occurred or is threatened, which, after the giving of notice, with
lapse of time, or otherwise, would constitute a breach or default by Impella or
any other party under such lease or sublease;
(d) Impella
has not assigned, transferred, conveyed, mortgaged, deeded in trust or
encumbered any interest in the leasehold or subleasehold; and
(e) Impella
is not aware of any Lien, easement, covenant or other restriction applicable to
the real property that materially impairs the current uses or the occupancy by
Impella of the property subject thereto.
3.13
.
Intellectual
Property Rights
.
(a) Attached
as Section 3.13(a) of the Disclosure Schedule is the following:
(i) List
of all Marks;
(ii) List
of all copyright registrations included in the Copyrights;
30
(iii) List
of all patents issued to, or assigned or licensed to, Impella, together with
the filing date, issue date and patent numbers of each such patent
(collectively, the
Issued Patents
),
indicating whether each such Issued Patent is owned by or licensed to Impella,
and all applications for patents filed by Impella or by any assignor or
licensor of Impella, including the title, filing date and serial number of each
such application (collectively, the
Patent
Applications
), indicating whether each such Patent Application is
owned by or licensed to Impella;
(iv) List
of all written invention disclosures made since December 17, 2002 (the
date of incorporation) of Impella by any employee of Impella made in the course
of their employment with Impella, or by a consultant to Impella, where such
invention was made during an engagement to provide services for Impella and it
was agreed the invention shall belong to Impella, and that are not otherwise
covered by any of the Issued Patents or Patent Applications;
(v) List
of agreements containing customary provisions with respect to non-disclosure of
Impella proprietary information and assignment of inventions to Impella (each a
Confidentiality and Assignment Agreement
and collectively, the
Confidentiality and
Assignment Agreements
) which Impella has entered into with the
Impella Persons with respect to Impellas Intellectual Property Rights.
(b) Impella (i) owns
and holds, free and clear of all Liens, all right, title and interest in the
Intellectual Property Rights, (ii) has the exclusive right to use, sell,
license or dispose of the Intellectual Property Rights and (iii) has the
exclusive right to bring action for the infringement of the Intellectual
Property Rights. After the Closing,
Impella will continue to own the Intellectual Property Rights and will have the
unrestricted right and authority to fully use and exploit (including the
unrestricted right to sublicense any Intellectual Property Rights) the same for
commercial purposes. Except as set forth
in Section 3.13(b) of the Disclosure Schedule, only Persons employed
by Impella (each of whom has executed a Confidentiality and Assignment
Agreement), or consultants to Impella who are bound by a Confidentiality and
Assignment Agreement, have participated in the conception, reduction to
practice, development, invention, discovery or design of any Intellectual
Property Rights, and neither Impella nor any employee, consultant or other
Person participating in the conception, reduction to practice, development, invention,
discovery or design of any Intellectual Property Rights has used any facilities
or received any remuneration from any academic or research institution or
Governmental Authority attributable to such participation. Except as described in Section 3.13(b) of
the Disclosure Schedule, there is no pending or, to the Knowledge of Impella,
threatened claim or litigation contesting the patentability, validity,
enforceability, ownership or right to use, sell, license or dispose of any
Intellectual Property Rights, or asserting that any Intellectual Property
Rights or the proposed use, sale, license or disposition thereof, or the
manufacture, use, importation, offer for sale or sale of any Product, conflicts
or will conflict with the intellectual property rights of any other Person and
Impella has not received any opinions of counsel relating to any such claim or
litigation.
(c) The
Issued Patents are in full force and effect and are not subject to any as yet
unpaid Taxes, Liens, maintenance fees or annuities payable prior to the
Closing. Each Patent Application is
pending issuance and no action or inaction which might result in abandonment
31
thereof has occurred. Neither Impella or any officer, director,
employee or agent of Impella nor, to the Knowledge of Impella, any officer
director, employee or agent of any other Person, has made any public
disclosure, prior to the filing of any patent application resulting in an
Issued Patent or prior to the filing of any Patent Application, of any matter
that relates to any subject matter disclosed in an Issued Patent or Patent
Application that may reasonably be expected to adversely affect the validity or
issuance of such Issued Patent or any patent issuing from a Patent Application. To the Knowledge of Impella, no facts or
circumstances exist that could result in the invalidation or in a finding of
unenforceability or unpatentability of any of the Issued Patents or any of the
patents issuing on any of the Patent Applications, and none of the claims in
the Patent Applications has been finally rejected without further recourse
available to Impella. To the Knowledge
of Impella, all Issued Patents are valid and enforceable, and all patents, if
any, issuing on any of the Patent Applications, will be valid and enforceable.
(d) Except as
set forth in Section 3.13(d) of the Disclosure Schedule, the
Intellectual Property Rights constitute all intellectual property rights that
are or have been material or necessary for the design, development,
manufacture, operation, sale or use of Products or for the conduct of the
Business, as conducted by Impella prior to the Closing Date.
(e) Neither
Impella nor to the Knowledge of Impella, any Impella Person has misappropriated
any patent, invention, process, method, compound, design, formula or other
proprietary or intellectual property rights of any third Person. The practice of the Intellectual Property
Rights, as practiced by Impella prior to the Closing, does not infringe or
otherwise violate any proprietary rights of any third Person. Except as set forth in Section 3.13(e) of
the Disclosure Schedule, Impella has received no notice of any such
infringement or alleged infringement prior to the Closing Date. The consummation of the transactions
contemplated by this Agreement and the Related Documents and the use by Impella
immediately after the Closing of the Intellectual Property Rights will not
infringe or otherwise violate any proprietary rights of any third Person. To the Knowledge of Impella, there are no
rights owned by any third party which would prevent the development,
manufacture, operation, sale or use by Impella or any Affiliate of Impella of
any Product or that would materially impede the ongoing operation of the
Business. Impella has received no notice
from a third party offering a license under such third partys intellectual
property rights that relates to any Product.
(f) The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby and thereby will not: (i) constitute
a breach of any instrument or agreement governing any Intellectual Property
Rights, (ii) cause the modification of any terms of any licenses or
agreements relating to any Intellectual Property Rights including the
modification of the effective rate of any royalties or other payments provided
for in any such license or agreement, (iii) cause the forfeiture or
termination of any Intellectual Property Rights, (iv) give rise to a right
of forfeiture or termination of any Intellectual Property Rights, or (v) impair
the right of Impella, or its Affiliates to develop, manufacture, use, sell,
offer for sale, import or license any Product or Intellectual Property Rights.
(g) Impella
is not obligated to make any payments to any third Person with respect to the
Intellectual Property Rights, whether by way of royalties, fees or otherwise
(except for maintenance and renewal fees payable to Governmental Authorities).
32
(h) The Marks
are the only trademarks, service marks or trade names used in the
Business. Impella is the sole and
exclusive owner of the Marks, free and clear of all Liens. To the Knowledge of Impella, (x) use by
Impella of the Marks has not and does not infringe any trademarks, service
marks or trade names belonging to any other Person, and (y) no Person has
infringed any of the Marks. To the
Knowledge of Impella, no facts or circumstances exist that could reasonably be
expected to result in the invalidation or in a cancellation of any of the
Marks.
(i) Impella
is the sole and exclusive owner of the Trade Dress, free and clear of all
Liens. To the knowledge of Impella, use
by Impella of the Trade Dress has not and does not infringe any intellectual
property rights belonging to any other Person, and no Person has infringed any
Intellectual Property Rights related to the Trade Dress.
(j) Impella is the
sole owner of all Trade Secrets, free and clear of all Liens or legal or
equitable claims of any other Person.
Impella has not misappropriated any of the Trade Secrets from any third
Person. Neither Impella nor any officer,
director, employee, agent or Affiliate of Impella, nor to the Knowledge of
Impella, any other Person has (i) taken or omitted to take any action that
has made or may make the Trade Secrets part of public knowledge or literature
or (ii) used, divulged, or appropriated the Trade Secrets for the benefit
of any Person or to the detriment of Impella.
Impella has taken all reasonable steps to protect the confidentiality of
all Trade Secrets, including entering into the Confidentiality and Assignment
Agreements described on Section 3.13(a)(v) of the
Disclosure Schedule
hereto,
with all employees and consultants having access to confidential information
requiring them not to disclose such information or to use the same for their
own benefit or for the benefit of any other Person. To the Knowledge of Impella, no Person is in
breach of any such Confidentiality and Assignment Agreement in any respect that
could adversely affect the Intellectual Property Rights or Impellas rights
therein.
(k) Impella has
received no notice from any Person alleging that any of the Issued Patents are
invalid or unenforceable and Impella has received no opinions (written or oral)
regarding the Issued Patents that have not been disclosed in the Disclosure
Schedule.
(l) Except as set
forth in Section 3.13(l) of the Disclosure Schedule, the Intellectual
Property Rights are freely transferable by Impella without the consent of or
notice to any third Person. The
transactions contemplated hereby will not adversely affect the rights or
claimed rights of, or result in the payment of any royalty or consideration to,
any third Person.
(m) Each of the
Impella Persons listed on Section 3.13(m) of the Disclosure Schedule has
executed a Confidentiality and Assignment Agreement, which provides for valid
and enforceable assignments to Impella of any and all rights or claims in any
intellectual property that any such Impella Person has developed during the
course of his or her employment with Impella in the Business. Impella possesses signed copies of all such
Confidentiality and Assignment Agreements with such Impella Persons. The list of Impella Persons set forth on Section 3.13(m)
of the Disclosure Schedule includes all such current Impella Persons.
(n) Section 3.13(n)
of the Disclosure Schedule contains a true, accurate and complete list of
the computer software owned or used by Impella, and that is material to the
33
ongoing operation of the
Business, and indicates whether such software is owned by or licensed to
Impella. Except as set forth in Section 3.13(n)
of the Disclosure Schedule, all of such computer software is freely
transferable by Impella without the consent of or notice to any third Person
and Impellas use of such software after the Closing for the ongoing operation
of the Business will not infringe on or otherwise adversely affect the rights
or claimed rights of, or result in the payment of any royalty or consideration
to, any third Person.
(o) Other than any
licensed patent rights identified in Section 3.13(a)(iii) of the
Disclosure Schedule or off-the-shelf software, there is no third party
intellectual property that is licensed or otherwise used by Impella under a
right granted by a third party (i) which is or would be material to the
Business or the Products or (ii) that is in any way related to the Patents
or the Patent Rights.
3.14
.
Inventory
. Except as
set forth in Section 3.14 of the Disclosure Schedule: (i) all
inventory of Impella, whether or not reflected on the Most Recent Balance
Sheet, consists of a quality and quantity usable and saleable in the ordinary
course of business, except for obsolete items and items of below-standard
quality, all of which have been written off or written down to net realizable
value on the Most Recent Balance Sheet and (ii) all inventories not
written off have been priced at the lower of cost or market on a first-in, first-out
basis.
3.15
.
Contracts
.
(a)
Listed Agreements
. Section 3.15 of the Disclosure Schedule lists
the following agreements (written or oral) to which Impella is a party as of
the date of this Agreement:
(i) any
agreement (or group of related agreements) for the lease of personal property
from or to third parties providing for lease payments in excess of 10,000 per
annum or having a remaining term longer than 12 months;
(ii) any
agreement (or group of related agreements) for the purchase or sale of Products
or for the furnishing or receipt of services (A) which calls for
performance over a period of more than one year, (B) which involves more
than the sum of 10,000 (excluding agreements for the sale of goods in the
ordinary course of business), or (C) in which Impella has granted
manufacturing rights, most favored nation pricing provisions or marketing or
distribution rights relating to any Products or territory, or has agreed to
purchase a minimum quantity of goods or services, or has agreed to purchase
goods or services exclusively from a certain party;
(iii) any
agreement establishing a partnership or joint venture;
(iv) any
agreement (or group of related agreements) under which it has created,
incurred, assumed or guaranteed (or may create, incur, assume or guarantee)
indebtedness (including capitalized lease obligations) involving more than 25,000
or under which it has imposed (or may impose) a Lien on any of its assets,
tangible or intangible;
(v) any
agreement under which Impella or one of its Subsidiaries is bound by a
confidentiality or noncompetition provision;
34
(vi) any
agreement for personal services or employment with any of Impellas employees
not terminable by Impella before or after the Closing upon not more than 10
days notice without penalty or any other liability;
(vii) any
bonus, deferred compensation, pension, severance, profit-sharing, stock option,
employee stock purchase or retirement plan, contract or arrangement or other
employee benefit plan or other arrangement covering Impellas employees;
(viii) any
agreement involving any current or former officer, director or stockholder of
Impella or any Affiliate or any family member of any of the foregoing;
(ix) any
agreement under which the consequences of a default or termination would
reasonably be expected to have an Impella Material Adverse Effect;
(x) any
agreement (A) which contains any provisions requiring Impella to indemnify
any other party thereto (excluding indemnities contained in agreements for the
purchase, sale or license of Products entered into in the ordinary course of
business on terms no less favorable to Impella than the Standard Terms), or (B) relating
to the extension of credit by Impella or guaranteeing by Impella of any
obligation of any third party;
(xi) any
contract or agreement that provides any discount other than pursuant to Impellas
standard discount terms;
(xii) any
contract providing for the payment of a commission or other fee calculated as
or by reference to the profits or revenues of Impella or of any business
segment of Impella;
(xiii) any
contract or agreement not described above that is material to the business,
operations, assets, financial condition, results of operations, properties or
prospects of Impella; and
(xiv) any
other agreement (or group of related agreements) either involving more than
25,000 or not entered into in the ordinary course of business.
(b)
Delivery of Listed Agreements
. Impella has delivered to ABIOMED a complete
and accurate copy of each written agreement listed in Section 3.15 of the
Disclosure Schedule (the
Listed
Agreements
).
(c)
No Default
.
With respect to each Listed Agreement:
(i) the agreement is legal, valid, binding and enforceable against
Impella or its Subsidiaries, as the case may be, and to the Knowledge of
Impella, against the other parties thereto, in each case, in accordance with
its respective terms, and in full force and effect; (ii) the agreement
will continue to be legal, valid, binding and enforceable and in full force and
effect against Impella or its Subsidiaries, as the case may be, and to the
Knowledge of Impella, against the other parties thereto, immediately following
the Closing in accordance with the terms thereof as in effect immediately prior
to the Closing; and (iii) neither Impella, nor, to the Knowledge of
Impella, any other party, is in material breach or violation of, or in default
under, any such agreement, and no event has
35
occurred, is pending or, to the
Knowledge of Impella, is threatened, which, after the giving of notice, with
lapse of time, or otherwise, would constitute a material breach or default by
Impella or, to the Knowledge of Impella, any other party under such
agreement. No written notice, or, to the
Knowledge of Impella, other notice, has been received by Impella with respect
to the possible termination or modification of any of the Listed Agreements,
and, to the Knowledge of Impella, Impella has no reason to believe that any
business or financial relationship with any party to a Listed Agreement is likely
to be adversely affected by consummation of the transactions contemplated by
this Agreement.
3.16
.
Accounts Receivable; Accounts Payable
.
(a)
Accounts Receivable
. Impella has provided to ABIOMED a true,
correct and complete list, including aging information, of all of Impellas
accounts receivable as of the Most Recent Balance Sheet Date. All accounts receivable and vendor accounts
receivable of Impella reflected on the Most Recent Balance Sheet are valid
receivables subject to no setoffs or counterclaims except as provided for in
the reserve for bad debts on the Most Recent Balance Sheet. Except as set forth in Section 3.16 of
the Disclosure Schedule, all accounts receivable and vendor accounts receivable
reflected in the financial or accounting records of Impella that have arisen
since the Most Recent Balance Sheet Date are valid receivables subject to no
setoffs or counterclaims except as provided for in the reserve for bad debts in
an amount proportionate to the reserve shown on the Most Recent Balance Sheet.
(b)
Accounts Payable
. Impella has provided to ABIOMED a true,
correct and complete list, including aging information, of all of Impellas
accounts payable as of the Most Recent Balance Sheet Date.
3.17
.
Powers of Attorney
.
Other than the authorized signatories named in Section 3.17 of the
Disclosure Schedule, there are no outstanding powers of attorney executed on
behalf of Impella.
3.18
.
Insurance
. Section 3.18
of the Disclosure Schedule lists each insurance policy (including fire,
theft, casualty, general liability, workers compensation, business
interruption, environmental, Product liability and automobile insurance
policies and bond and surety arrangements) to which Impella is a party. Such insurance policies are of the type and
in amounts customarily carried by organizations conducting businesses or owning
assets similar to those of Impella.
There is no material claim pending under any such policy as to which
coverage has been questioned, denied or disputed by the underwriter of such
policy. All premiums due and payable
under all such policies have been paid, Impella has no reason to believe that
it will be liable for retroactive premiums or similar payments, and Impella is
otherwise in compliance in all material respects with the terms of such
policies. Impella has no knowledge of
any threatened termination of, or material premium increase with respect to,
any such policy. Each such policy will
continue to be enforceable and in full force and effect immediately following
the Closing in accordance with the terms thereof as in effect immediately prior
to the Closing.
3.19
.
Litigation
. There is no
Litigation Matter which is pending or has been threatened in writing against
Impella which (a) seeks either damages in excess of 25,000 or equitable
relief or (b) in any manner challenges or seeks to prevent, enjoin, alter
or delay the transactions
36
contemplated by this
Agreement. Neither Impella, nor any
property or asset of Impella, is subject to any order, writ, judgment,
injunction, decree, determination or award which restricts Impellas ability to
conduct business in any area in which it presently does business or which has,
or could reasonably be expected to have, either individually or in the
aggregate, an Impella Material Adverse Effect.
3.20
.
Warranties; Customer Complaints
.
(a)
Impella Obligations
. No Product or service manufactured, sold,
leased, licensed or delivered by Impella is subject to any guaranty, warranty,
right of return, right of credit or other indemnity of Impella (collectively,
the
Impella Obligations
) other
than the applicable standard terms and conditions of sale or lease of Impella,
which are set forth in Section 3.20 of the Disclosure Schedule (the
Standard Terms
).
(b)
Product Liability Litigation
. Neither Impella nor any officer or director
of Impella is or has been a defendant in any Product liability litigation
relating to any Product sold by Impella, and no such litigation is pending, or,
to the Knowledge of Impella, has been threatened.
(c)
Complaints and Warranty Claims
. Set forth on Section 3.20 of the
Disclosure Schedule is a description of all written customer complaints
received by Impella over the past year and a list of all warranty obligations
outstanding with respect to any Product as of the date hereof.
3.21
.
Complaint Log
. Impellas
complaint handling system has been made available for review by ABIOMED and
contains complete and correct information about all deaths, serious injuries,
malfunctions, events requiring remedial action to prevent an unreasonable risk
of harm, or other adverse events relating to all Products made known to Impella
and required to be reported in compliance with applicable law. Impellas records also contain complete and
accurate information about all Products returned to Impella because of warranty
or other problems. Impellas records
relating to credits and allowances made with respect to any returned Product
have been made available for review by ABIOMED and are true and correct in all
material respects. Except as disclosed
in Section 3.21 of the Disclosure Schedule, Impella has made no
modifications to any Product because of warranty or other claims concerning the
defects in such returned Product.
Impella maintains no other records of warranty or other Product defect
claims other than its complaint handling system.
3.22
.
Employees
.
(a)
Employees and Consultants
.
Section 3.22 of the Disclosure Schedule lists each employee or
consultant of Impella as of the date hereof.
Impella has previously delivered to ABIOMED a true, correct and complete
list which sets forth each employees and consultants date of hire, title,
department, leave status, current salary, rate of compensation, current bonus
eligibility, accrued vacation, retention or severance eligibility and accrued
sick time, and for 2004 each employees or consultants salary, bonus,
commissions and total compensation paid. Impella will update such lists as of
the Closing. To the Knowledge of Impella,
no Key
37
Employee or group of employees
has any plans to terminate employment with Impella except as set forth in Section 3.22(a) of
the Disclosure Schedule.
(b)
Service Agreements
. Section 3.22
of the Disclosure Schedule contains a complete list of all service
agreements (
Dienstverträge
) concluded with current
members of the management board (
Vorstand
).
(c)
Non-Competition
. Section 3.22 of the Disclosure Schedule contains
a complete list of all employees of Impella who are a party to a
non-competition agreement with Impella; copies of such agreements have
previously been delivered to ABIOMED.
(d)
Labor Agreements
. Impella is not a party to or bound by any
collective bargaining agreement, nor has it experienced any strikes,
grievances, claims of unfair labor practices or other collective bargaining
disputes. To the Knowledge of Impella,
there have not been any organizational efforts made or threatened, either
currently or within the past two years, by or on behalf of any labor union with
respect to employees of Impella.
(e)
Works Council.
As of
the date hereof, there is no works council established and no works council
elections initiated at Impella. Impella
is not a party to or bound by any works agreement.
(f)
Compliance
.
Impella is in material compliance with all laws, rules and
regulations regarding the regulation of labor, hiring, employment standards,
workplace human rights, pay equity, employment equity, health and safety. No independent contractor, consultant,
freelancer or other person working, or providing work or services for or with
respect to Impella is improperly classified by Impella as an employee of
Impella.
(g)
Employee Claims
.
Impella has paid all amounts currently due to its employees and
consultants, as of the date hereof, as well as all matured social security
contributions, other statutory contributions related to its employees (e.g.
contributions to the employers liability insurance association -
Berufsgenossenschaftliche Unfallversicherung
) and premiums
for other insurance on behalf of its employees.
(h)
Litigation
. Except as
disclosed in Section 3.22 of the Disclosure Schedule, Impella is not a
party to any labor disputes.
3.23
.
Employee
Benefits.
(a) Section 3.23(b) of
the Disclosure Schedule contains a complete and accurate list of all
Employee Benefit Plans maintained, or contributed to, by Impella or with
respect to which Impella may have any material liability (the
Impella Plans
).
(b) Complete
and accurate copies of (i) all Impella Plans which have been reduced to
writing, (ii) all related determination letters received from any
Governmental Authority, (iii) written summaries of all unwritten Impella
Plans, (iv) all related trust agreements, insurance contracts and summary
plan descriptions, and (v) all related annual reports filed with any
Governmental Authority and all plan financial statements for the last three
plan years for each Impella Plan, have been delivered or made available to
ABIOMED.
38
(c) Each
Impella Plan has been maintained, funded and administered in all material
respects in accordance with its terms, and Impella has in all material respects
met its obligations with respect to such Impella Plan and has made all required
contributions thereto. Each Impella Plan
has been maintained in compliance in all material respects with the currently
applicable provisions of applicable laws.
(d) All
required reports and descriptions have in all material respects been timely
filed and/or distributed in accordance with the requirements of applicable law
with respect to each Impella Plan.
(e) There are
no Litigation Matters (except claims for benefits payable in the normal
operation of the Impella Plans and proceedings with respect to qualified
domestic relations orders) pending, or to the Knowledge of Impella, threatened,
with respect to any Impella Plan, that could give rise to any material
liability.
(f) Impella
has not contributed to, nor has any obligation to contribute to, or has any
material liability under or with respect to any Impella Plan that is a defined
benefit pension plan.
(g) Impella
does not maintain, contribute to, or have an obligation to contribute to, or
have any material liability with respect to, any Impella Plan providing retiree
health or life insurance or other welfare-type benefits for current or future
retired or terminated employees (or any spouse or other dependent thereof) of
Impella (other than post-termination coverage under COBRA or other applicable
laws).
(h) No act or
omission has occurred and no condition exists with respect to any Impella Plan
maintained by Impella that would subject Impella to (i) any material fine,
penalty, tax or liability of any kind imposed under applicable law or (ii) any
material contractual indemnification or contribution obligation protecting any
fiduciary, insurer or service provider with respect to any Impella Plan.
(i) No
Impella Plan, plan documentation or agreement, summary plan description or
other written communication distributed generally to employees by its terms
prohibits Impella from amending or terminating any such Impella Plan.
(j) Section 3.23(j)
of the Disclosure Schedule discloses each:
(i) agreement between Impella and any director, executive officer
or other key employee of Impella (A) the benefits of which are contingent,
or the terms of which are materially altered, upon the occurrence of a
transaction involving Impella of the nature of any of the transactions
contemplated by this Agreement, (B) providing any term of employment in
excess of more than one year or compensation guarantee or (C) providing
severance benefits or other benefits after the termination of employment of
such director, executive officer or key employee; and (ii) agreement or
plan binding Impella, including without limitation any stock option plan, stock
appreciation right plan, restricted stock plan, stock purchase plan, severance
benefit plan or Impella Plan, any of the benefits of which will be increased,
or the vesting of the benefits of which will be accelerated, by the occurrence
of any of the transactions contemplated by this Agreement or the value of any
of the benefits of which will be calculated on the basis of any of
39
the transactions contemplated
by this Agreement.
3.24
.
Environmental
Matters
.
(a)
Compliance
.
Impella is in material compliance with applicable Environmental
Laws. No real property (including
buildings or other structures) currently owned, operated, or leased, or, to the
Knowledge of Impella, formerly owned, operated or leased by Impella (
Impella Property
), has been contaminated with, or has had
any release of, any Hazardous Substance during the time that Impella leased or
occupied such property, or to the Knowledge of Impella, such other times,
except in compliance with Environmental Laws; Impella has not participated in
the management regarding Hazardous Substances of any Impella Property which has
been contaminated with, or has had any release of, any Hazardous Substance
except in material compliance with Environmental Laws.
(b)
No Hazardous Substances
. To the Knowledge of Impella, Impella (i) has
no liability for any Hazardous Substance disposal or contamination on any third
party property, (ii) has not received any notice, demand letter, claim or
request for information alleging any violation of, or liability under, any
Environmental Law, and (iii) is not subject to any order, decree,
injunction or other agreement with any Governmental Authority or any third
party arising under any Environmental Law.
(c)
No Claims
.
To the Knowledge of Impella, there are no circumstances or conditions
(including the presence of friable asbestos, underground storage tanks, lead
Products, polychlorinated biphenyls, prior manufacturing operations,
dry-cleaning or automotive services) involving Impella or any of its
Subsidiaries, any currently or formerly owned or operated property, or any
Impella Property, that could reasonably be expected to result in any claims or
liability against Impella or any of its Subsidiaries, result in any
restrictions on the ownership, use, or transfer of any property pursuant to any
Environmental Law, or adversely affect the value of any Impella Property.
(d)
Reports
.
To the Knowledge of Impella, Impella has delivered to ABIOMED copies of
or provided access to all environmental reports, studies, sampling data,
correspondence, filings and other environmental information in its possession
or reasonably available to it relating to Impella or any currently or formerly
owned or operated property or any Impella Property.
(e)
Definitions
. As used herein, the term
Environmental Laws
means any law, regulation, order,
decree, permit, authorization, opinion or agency requirement of any
Governmental Authority relating to: (A) the
protection or restoration of the environment, health, safety, or natural
resources, (B) the handling, use, presence, disposal, release or
threatened release of any Hazardous Substance or (C) wetlands, indoor air,
pollution, contamination or any injury or threat of injury to Persons or
property in connection with any Hazardous Substance. The term
Hazardous
Substance
means any substance that is: (X) listed, classified
or regulated pursuant to any Environmental Law, (Y) any petroleum product
or by-product, friable asbestos-containing material, lead-containing paint or
plumbing, polychlorinated biphenyls, radioactive materials or radon or
(Z) any other substance which is the subject of regulatory action by any
Governmental Authority in connection with any Environmental Law.
40
3.25
.
Licenses and
Permits; Regulatory Filings; Legal Compliance
.
(a)
List of Permits
. Attached as Section 3.25(a) of the
Disclosure Schedule is a true, correct and complete list of all licenses,
permits, orders, franchises, certificates, and other authorizations of
Governmental Authorities, consents, rights, concurrences, registrations and
approvals issued by any Governmental Authority or organization, including
all CE Marking certifications
obtained from Notified Bodies, FDA 510(k) pre-market notifications (
510(k)s
), FDA pre-market approvals (
PMAs
),
investigational device exemptions (
IDEs
),
approvals or opinions from any Ethics Committee relating to the conduct of any
Product clinical trial sponsored by Impella within the European Union (
Consents from Ethics Committees
), facilities
registrations, and other FDA authorizations
(individually and
collectively, the
Permits
).
(b)
Access to Correspondence
. To the extent not listed pursuant to Section 3.25(a),
Impella has provided ABIOMED access to all of Impellas applications,
registrations, approvals and filings with, and other submissions and other
correspondence to or from, any Notified Body, any other Governmental Authority
of any EU Member State (including, for example, the German BfArM), the FDA, and
any state counterpart, and, with respect to FDA filings and submissions,
identifying the type of the filing or submission (whether under the FDA 510(k)
procedure, IDE process, the PMA process or otherwise), including all warning
letters, all vigilance reports, all adverse event reports, all correspondence
relating to all audits by Notified Bodies or any other Governmental Authority,
FDA audits, all responses to Notified Bodies or any other Governmental
Authority, all facilities registration documentation and all device listing
documentation that it has in its possession (individually and collectively, the
Regulatory Correspondence
).
(c)
Permits Valid
. All the Permits are valid and in full force
and effect and all information submitted to the applicable Governmental
Authority in order to obtain each such Permit was true, accurate and complete
when submitted, and Impella knows of no impediment to any renewal thereof. Impella is in material compliance with the
respective requirements, conditions and provisions of all Permits and Impella
has not been informed in writing (or, to the Knowledge of Impella, orally) by (i) any
Governmental Authority or (ii) any lawyer or consultant (knowledgeable in
the relevant field) of Impella of any deficiency with respect to any
Permit. No proceeding is pending or, to
the Knowledge of Impella, threatened to revoke or amend any of such Product
Permits, nor are there facts or circumstances of which Impella is aware which
form a basis upon which a Governmental Authority reasonably could seek to
revoke or amend any Permit. Except as
disclosed on Section 3.25(c) of the Disclosure Schedule, the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby will not result in a modification, impairment, revocation,
suspension or limitation of any Permit.
Except as disclosed in Section 3.25(c) of the Disclosure
Schedule, no Permit by its terms requires the consent of its issuing authority
in order to remain in full force and effect after the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby.
41
3.26
.
Conduct of Business in
Compliance with Regulatory Requirements
.
(a)
Compliance
. Impella is in compliance with the Regulatory
Law and each applicable regulation, rule, ordinance, order, judgment,
requirement, directive, decree and code promulgated or rendered by any
Governmental Authority. Except as set
forth in Section 3.26 of the Disclosure Schedule, since its inception,
Impella has not been required by any Governmental Authority to make, nor has
voluntarily undertaken, any Product recall, nor has Impella been inhibited in
the research and development, manufacture, clinical testing, production,
marketing, advertising, distribution, use, offer for sale or sale of any
Product as a result of any specific action of, or notification from, any
Governmental Authority, and, to the Knowledge of Impella, there is no action or
proceeding threatened by the FDA, the BfArM or any other European Union,
German, United States or other Governmental Authority or multinational organization
against Impella, other than regulatory actions and proceedings commenced prior
to the date of this Agreement generally known to the public affecting the
medical device industry generally (and not specifically relating to Impella or
the Business).
(b)
No Notices
. Except as set forth in Section 3.26 of
the Disclosure Schedule or in the Regulatory Correspondence, since its
inception, Impella has not received notice of and, to the Knowledge of Impella,
is not subject to, any adverse inspection, finding of deficiency, finding of
non-compliance, compelled or voluntary recall, investigation, penalty, fine,
sanction, assessment, request for corrective or remedial action, audit, or
other compliance or enforcement action, relating to any Product or to the facilities
in which any Product is manufactured or handled, by any Governmental Authority.
(c)
All Necessary Approvals
. Except as set forth in Section 3.26 of
the Disclosure Schedule, Impella has obtained or, prior to the Closing, will
obtain (unless such condition is waived by ABIOMED prior to the Closing) all
necessary approvals, certifications, registrations and authorizations from, has
made or will make all necessary and appropriate applications and other
submissions to, and has prepared and maintained or will prepare and maintain
all records, studies and other documentation needed to satisfy and demonstrate
compliance with the requirements of all applicable Governmental Authorities for
its current and past business activities and for the sale of any Product within
the European Union and the United States, including any necessary CE Marking
certifications, 510(k)s, PMAs, IDEs, Consents from Ethics Committees, line
extension letters relating any Product to existing 510(k)s, studies of safety
and efficacy, design and engineering specifications and modifications, device
history records, certificates of export, and MDRs.
(d)
No False Statements
. Except as set forth in Section 3.26 of
the Disclosure Schedule, Impella has not made any material false statement in,
or material omission from, the applications, approvals, reports, or other
submissions to the FDA or other Governmental Authorities or in or from any
other records and documentation prepared or maintained to comply with the
requirements of the FDA or other Governmental Authorities relating to any
Product, including any CE Marking certifications, 510(k)s, PMAs, IDEs, Consents
from Ethics Committees, vigilance reports, line extension letters,
documentation of safety and efficacy, studies or documentation of equivalency,
Product labeling, device history records, certificates of export, or MDRs.
(e)
Third Party Actions
. Except as set forth in Section 3.26 of
the Disclosure Schedule, since its inception, to the Knowledge of Impella, no
third party, contractor,
42
investigator,
or researcher, employed or retained by Impella or otherwise acting on behalf of
Impella, has made any material false statement in, or material omission from,
any report, study or other documentation prepared in conjunction with the
applications, approvals, reports, or records submitted to or prepared for the
FDA or other Governmental Authorities relating to any Product, nor has any such
third party, contractor, investigator or researcher failed to substantially
comply with any testing requirements, study protocols or requirements to obtain
any Consent from Ethics Committees in connection with work performed on behalf
of Impella or work otherwise relied upon by Impella in its submissions and documentation
for the FDA or other Governmental Authorities.
(f)
No Gratuities
. Neither Impella nor, to the Knowledge of
Impella, any third Person or agent for Impella has made or offered any payment,
gratuity, or other thing of value that is prohibited by any law or regulation
to personnel of any Governmental Authorities.
(g)
No Notification
. Except as set forth in Section 3.26 of
the Disclosure Schedule, since its inception, Impella has not received any
notification, written or verbal, which remains unresolved, from any
Governmental Authorities indicating that any Product is unsafe or ineffective
for its intended use, or that any Product labeling fails to disclose its
intended use, provide adequate directions for use, or contains any false or
misleading representation.
(h)
General
. Impella, and the conduct and operations of
its business, are in compliance with each applicable law (including rules and
regulations thereunder) of any Governmental Authority, and Impella has not
received notice of any material violations of any of the above.
3.27
.
Customers and Suppliers
.
(a)
Customers
.
Section 3.27(a) of the Disclosure Schedule sets forth a
list of Impellas largest 10 customers during the fiscal year ended December 31,
2004 and the amount of revenues accounted for by each such customer during such
period. Except as set forth in Section 3.27(a) of
the Disclosure Schedule, to the Knowledge of Impella, none of Impellas top 10
customers in the fiscal year ended December 31, 2004 has indicated that it
will stop, or materially decrease the rate of, buying Products from Impella.
(b)
Vendors
.
Impella believes that its business relationships with vendors,
manufacturers and resellers (
Business
Vendors
) with whom it has business dealings are generally satisfactory. Section 3.27(b) of the Disclosure Schedule sets
forth a list of the largest Business Vendors that accounted for approximately
eighty percent (80%) of Impellas purchases during the last full fiscal
year. Impella does not now have a
material dispute with any such listed Business Vendor (except as listed in Section 3.27(b) of
the Disclosure Schedule). During the
past fiscal year, Impella has not received any written notice that indicates
dissatisfaction with Impellas performance of its obligations to such listed
Business Vendors. No written notice has
been received by Impella with respect to the possible termination or
modification of any relationship with any such listed Business Vendor,
including modifications in co-op funds, rebates or marketing funds (other than
industry-wide notices not specific to Impella), and Impella has no reason to
believe that any business or financial relationship with a Business Vendor is
likely to be adversely affected by consummation of the Closing.
43
3.28
.
Prepayments, Prebilled Invoices and Deposits
. Section 3.28 of the Disclosure Schedule sets
forth (a) all prepayments, prebilled invoices and deposits in amounts, on
a per customer basis, greater than 2,000 that have been received by Impella as
of the date of this Agreement from customers for Products to be shipped, or
services to be performed, after the Closing Date, and (b) with respect to
each such prepayment, prebilled invoice or deposit, (i) the party and
contract credited, (ii) the date received or invoiced, (iii) the
Products and/or services to be delivered and (iv) the conditions for the
return of such prepayment, prebilled invoice or deposit. Except as set forth in Section 3.28 of
the Disclosure Schedule, all prepayments, prebilled invoices and deposits are
properly accrued for on the Most Recent Balance Sheet in accordance with German
GAAP applied on a consistent basis with the past practice of Impella.
3.29
.
Competing Interests
.
None of Impella, or, to the Knowledge of Impella, any director, officer,
agent or employee of Impella, or any Affiliate or family member of any of the
foregoing (a) owns, directly or indirectly, an interest in any entity that
is a competitor, customer or supplier of Impella or that otherwise has material
business dealings with Impella (other than ownership through a mutual fund or
similar investment vehicle) or (b) is a party to, or otherwise has any
direct or indirect interest opposed to Impella under, any material agreement or
other business relationship or arrangement material to Impella,
provided
that the foregoing clauses (a) and
(b) will not apply to any investment in publicly traded securities
constituting less than 1% of the outstanding securities in such class. Neither Impella, nor, to the Knowledge of
Impella, any director, officer, agent or employee of Impella, is a party to any
non-competition, non-solicitation, exclusivity or other similar agreement that
would in any way restrict or adversely affect the business or activities of
Impella or ABIOMED.
3.30
.
Interests of Impella Insiders
.
No director, officer or employee of Impella, or any Affiliate or
immediate family member of any of the foregoing, (i) has any interest in
any property, real or personal, tangible or intangible, including Impella
Intellectual Property Rights used in or pertaining to the business of Impella,
except for the normal rights of a shareholder, and except for rights under
existing employee benefit plans or (ii) is owed any money by Impella,
except salary and other benefits payable in the ordinary course of business.
3.31
.
Brokers Fees
. Impella
does not have and will not have any direct or indirect liability or obligation
to pay any fees or commissions to any broker, finder or investment banker with
respect to the transactions contemplated by this Agreement.
3.32
.
No Existing Discussions
.
As of the date of this Agreement, Impella is not engaged, directly or
indirectly, in any discussions or negotiations with any party other than
ABIOMED with respect to a liquidation, dissolution, sale of all or
substantially all of the assets of Impella, merger or consolidation involving
Impella.
3.33
.
Books and Records
. The
minute books and other similar records of Impella as provided to ABIOMED
contain complete and accurate records of all material actions taken at any
meetings of Impellas stockholders, Supervisory Board or Management Board or
any committee thereof and of all written consents executed in lieu of the
holding of any such meeting. The books
and records of Impella accurately reflect in all material respects the assets,
liabilities, business, financial condition and results of operations of Impella
and have been maintained in accordance with good business and bookkeeping
practices.
44
3.34
.
Disclosure
. No
representation or warranty by Impella or the Impella Stockholders contained in
this Agreement, and no statement contained in the Disclosure Schedule or
any certificate delivered or to be delivered by Impella or the Impella
Stockholders at or prior to the Closing pursuant to this Agreement, taken as a
whole, contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact necessary, in light of the circumstances
under which it was or will be made, in order to make the statements herein or
therein not misleading.
ARTICLE IV.
THE IMPELLA STOCKHOLDERS
4.1
.
Representations and Warranties of the Impella Stockholders
. The Impella Stockholders represent and
warrant to ABIOMED, severally and not jointly, as follows:
(a)
Ownership of Impella Outstanding Capital Stock
.
Each Impella Stockholder is the sole and
exclusive record and beneficial owner of that number of shares of Impella
Outstanding Capital Stock as is set forth opposite his name on Schedule I
to this Agreement. Each Impella
Stockholder possesses good and merchantable title to its Impella Outstanding
Capital Stock and owns its Impella Outstanding Capital Stock free and clear of
any and all Liens of any nature or kind, including any agreement,
understanding, or restriction affecting voting rights or other incidents of
record or beneficial ownership pertaining to the Impella Outstanding Capital
Stock, except as set forth in the Corporate Charter of Impella and the
Shareholders Agreement. Except as set
forth in the Corporate Charter of Impella and the Shareholders Agreement, each
Impella Stockholder has the absolute and unconditional right to sell, assign,
transfer and deliver its Impella Outstanding Capital Stock and, upon Closing,
ABIOMED will own the entire right, title and interest to all outstanding shares
of Impella Outstanding Capital Stock, free and clear of all Liens of any nature
whatsoever. Each representation or
warranty made in this Section 4.1(a) by one Impella Stockholder that
relates to facts or circumstances unique to another Impella Stockholder shall
be deemed to have been made to their knowledge.
(b)
Authorization of Transaction.
Each
Impella Stockholder has all requisite power and authority
to execute and deliver this Agreement and the Related Documents to which it is
a party and to perform its obligations hereunder and thereunder. The execution and delivery by each Impella
Stockholder of this Agreement and the Related Documents and the consummation of
the transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary action on the part of such Impella
Stockholder. Assuming that this
Agreement and the Related Documents constitute, or upon their execution, will
constitute, valid and binding agreements of ABIOMED and the other parties
thereto, this Agreement and the Related Documents to which each such Impella
Stockholder is or will be a party evidence, or upon their execution and
delivery will evidence, the legal, valid and binding obligations of such
Impella Stockholder, enforceable against such Impella Stockholder in accordance
with their respective terms, subject to bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws relating to or affecting the
rights and remedies of creditors generally.
This Agreement has been duly executed and delivered by each Impella
Stockholder and each of the Related Documents to which it is a party or to
which it will be a party will have been duly and validly executed and delivered
by such Impella Stockholder, as of the date on which such Related Document is
to be executed and delivered.
45
(c)
No Default or Violation.
The execution, delivery and
performance of this Agreement and the Related Documents by each Impella
Stockholder do not and will not (i) violate or require any registration,
qualification, consent, approval, or filing under, (x) any law, statute,
ordinance, rule or regulation, or (y) any judgment, injunction,
order, writ or decree of any court, arbitrator or Governmental Authority by
which such Impella Stockholder or its shares of Impella Outstanding Capital
Stock may be bound, or (ii) conflict with, require any consent, approval,
or filing under, result in the breach or termination of any provision of,
constitute a default under, result in the acceleration of the performance of
such Impella Stockholders obligations under, result in the vesting or
enhancement of any other Persons rights under, or result in the creation of
any lien upon any of such Stockholders shares of Impella Outstanding Capital
Stock pursuant to (x) any corporate charter or by-laws or (y) any
material indenture, mortgage, deed of trust, license, permit, approval,
consent, franchise, lease, contract, or other instrument or agreement to which
such Impella Stockholder is a party or by which such Impella Stockholder or any
of its shares of Impella Outstanding Capital Stock are bound (except in each case
where such matters would not prevent or delay the transactions contemplated
hereby.)
(d)
Investment Representations.
(i) Each
Impella Stockholder represents and warrants to ABIOMED as follows:
(A)
Such Impella
Stockholder understands that the shares of ABIOMED Common Stock to be received
by such Impella Stockholder hereunder will not have been registered or
qualified under the Securities Act or under the securities laws of any
jurisdiction, and other than pursuant to its obligations under the Registration
Rights Agreement, ABIOMED is not, nor will it be, under any obligation to
register such shares of ABIOMED Common Stock under the Securities Act or the
Securities laws of any jurisdiction.
Such Impella Stockholder further understands that such shares of ABIOMED
Common Stock will constitute restricted securities within the meaning of Rule 144
promulgated under the Securities Act and that, as such, such shares of ABIOMED
Common Stock must be held indefinitely unless they are subsequently registered
under the Securities Act or unless an exemption from the registration
requirements thereof is available.
(B)
Such Impella
Stockholder is acquiring the shares of ABIOMED Common Stock to be received by
it hereunder for its own account for investment and not for, with a view to or
in connection with any resale or distribution thereof in a manner that violates
the Securities Act or any other applicable securities laws.
(C)
Such Impella
Stockholder by reason of its business and financial experience, and the business
and financial experience of those persons retained by such Impella Stockholder
to advise it with respect to its investment in the shares of ABIOMED Common
Stock to be received by it hereunder, has such knowledge, sophistication and
experience in business and financial matters as to be capable of evaluating the
merits and risks of the prospective investment, and is
46
able to bear
the economic risk of such investment and is able to afford a complete loss of
such investment. Such Impella
Stockholder acknowledges and understands that ABIOMEDs filings with the
Securities and Exchange Commission are publicly available for review via the
SECs EDGAR website. Except as indicated
on
Schedule I
, such Impella Stockholder is an accredited investor
within the meaning of Rule 501 promulgated under the Securities Act.
(ii) Except
as otherwise indicated in
Schedule I
, each Impella Stockholder
whose address listed on
Schedule I
is located outside the United
States further represents and warrants to ABIOMED as follows:
(A)
If such
Impella Stockholder is an individual, the address for such Impella Stockholder
set forth on
Schedule I
is the true jurisdiction of citizenship,
residence and domicile of such Impella Stockholder, and such Impella
Stockholder has no present intention of becoming a citizen, resident or
domiciliary of any other state or jurisdiction.
If a corporation, trust, partnership or other entity, such Impella
Stockholder was organized under the laws of the jurisdiction of its principal
place of business and has its principal place of business at the address set
forth for such Impella Stockholder on
Schedule I
.
(B)
Such Impella
Stockholder, if an individual, was present in the United States during the
current year and the two preceding calendar years for less than 183 days in
each year.
(C)
No offer of
the ABIOMED Common Stock was made to such Impella Stockholder in the United
States.
(D)
At the time
such Impella Stockholder executed this Agreement, such Impella Stockholder was
located outside the United States.
(E)
Such Impella
Stockholder is not a U.S. Person and is not acquiring ABIOMED Common Stock
hereunder for the account or benefit of any U.S. Person.
(F)
Such Impella
Stockholder agrees to resell the ABIOMED Common Stock to be acquired hereunder
only in accordance with the provisions of Regulation S of the Securities Act,
pursuant to registration under the Securities Act, or pursuant to an available
exemption from registration under the Securities Act. The undersigned also agrees not to engage in
hedging transactions with regard to such ABIOMED Common Stock.
(e)
Approval of Agreement and Waiver of Right to Dissent.
Each of the Impella Stockholders
has approved the Agreement, and to the extent that they may be entitled to
notice, appraisal rights, dissenter rights, minority shareholder rights, or any
similar rights granted under any applicable law, each Impella Stockholder has
waived such rights and has agreed not to sue any party to this Agreement
related to such rights.
(f)
Brokers Fees.
The
Impella Stockholders do not have and will not have any direct or indirect
liability or obligation to pay any fees or commissions to any broker, finder or
investment banker with respect to the transactions contemplated by this
Agreement.
47
4.2
.
Role of the Stockholders Representative
.
Each Impella Stockholder acknowledges and agrees that the Stockholders
Representative has been appointed to represent him in connection with this
Agreement, the Related Documents and the transactions contemplated hereby and
thereby, and specifically confirms his agreement to the role, responsibilities,
and limited liability of the Stockholders Representative. Each Impella Stockholder also acknowledges
and agrees that his sole right to receive his portion of the Consideration
and to take actions with respect to any
amendment, assignment, actual or potential breach of this Agreement or the
Related Documents or with respect to the transactions contemplated hereby or
thereby shall be through and by means of the Stockholders Representative.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF ABIOMED
ABIOMED hereby represents and warrants to
Impella that the statements contained in this Article V are true and
correct as of the date hereof and will be true and correct as of the Closing
Date, except as expressly set forth herein or in the disclosure schedule delivered
by ABIOMED to Impella on or before the date of this Agreement or in any
supplement or amendment thereto delivered prior to the Closing and related to
matters that arose after the date of this Agreement pursuant to Section 6.3
hereof.
5.1
.
Organization, Standing and Power
. ABIOMED is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, has all requisite corporate power and authority to own, lease
and operate its properties and assets and to carry on its business as now being
conducted, and is duly qualified to do business, is in good standing as a
foreign corporation in each jurisdiction where the character of its properties
owned, operated or leased, or the nature of its activities makes such
qualification necessary, except for such failures to be so qualified that would
not, individually or in the aggregate, have an ABIOMED Material Adverse Effect.
5.2
.
Authority; No Conflict; Required Filings and Consents
.
(a)
Authorization of Transaction
. ABIOMED has all requisite corporate power and
authority to enter into this Agreement and the Related Documents, to perform
its obligations hereunder and thereunder and to consummate the transactions
contemplated by this Agreement and such Related Documents. The execution and delivery by ABIOMED of this
Agreement and the Related Documents and the consummation by ABIOMED of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate action on the part of ABIOMED. This Agreement and the Related Documents to
which ABIOMED is or will be a party evidence, or upon their execution will
evidence, the legal, valid and binding obligations of ABIOMED, enforceable
against ABIOMED in accordance with their respective terms, subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws relating to or affecting the rights and remedies of creditors
generally. This Agreement has been duly
executed and delivered by ABIOMED and each of the Related
48
Documents to which ABIOMED is
or will be a party will have been duly and validly executed and delivered by
ABIOMED, as of the date on which such Related Document is to be executed and
delivered.
(b)
No Conflict
. Neither the execution and delivery by ABIOMED
of this Agreement and the Related Documents, nor the consummation by ABIOMED of
the transactions contemplated hereby and thereby, will (a) conflict with
or violate any provision of the Corporate Charter or By-laws of ABIOMED, (b) require
on the part of ABIOMED any declaration, filing or registration with, or any
permit, order, authorization, consent or approval of any Person or Governmental
Authority, other than filings required under applicable securities laws and the
rules of the NASDAQ Stock Market, Inc., (c) conflict with,
result in a breach of, modification, termination or violation of, constitute
(with or without due notice or lapse of time or both) a default under, result
in the acceleration of obligations under, create in any party the right to
amend, terminate, modify or cancel, or require any notice, consent or waiver
under, or in any manner release any party thereto from any obligation under,
any material contract or instrument to which ABIOMED is a party or by which
ABIOMED is bound or to which any of their assets is subject, (d) result in
the imposition of any Lien upon any assets of ABIOMED or (e) conflict
with, violate, or result in any loss of benefit under any permit, concession,
franchise order, judgment, writ, injunction, decree, statute, rule or
regulation applicable to ABIOMED, or any of its properties or assets.
5.3
.
Capitalization
. The authorized capital stock of ABIOMED
consists of 1,000,000 shares of Class B Preferred Stock, US $.01 per value
per share, of which no shares are issued and outstanding, and 100,000,000
shares of Common Stock US $.01 per value per share (the
ABIOMED
Common Stock
), of which as of February 1, 2005, 22,043,292
shares were issued and outstanding.
5.4
.
Litigation
. There is no
Litigation Matter which is pending or has been threatened in writing against
ABIOMED which in any manner challenges or seeks to prevent, enjoin, alter or
delay the transactions contemplated by this Agreement. Neither ABIOMED, nor any property or asset of
ABIOMED, is subject to any order, writ, judgment, injunction, decree,
determination or award which restricts ABIOMEDs ability to conduct business in
any area in which it presently does business.
5.5
.
ABIOMED SEC Filings and Financial Statements.
Since September 30, 2002,
ABIOMED
has filed all forms, reports and other documents required to be filed by it
with the United States Securities and Exchange Commission (the
ABIOMED SEC Filings
), pursuant to the reporting
requirements of the Exchange Act and the Securities Act, or otherwise. As of their respective date, the ABIOMED SEC
Filings, as amended if relevant, complied in all material respects with all
applicable requirements of the Securities Act and the Exchange Act and the rules and
regulations promulgated thereunder, each as in effect on the dates such forms,
reports and documents were filed. None
of such ABIOMED SEC Filings, including any financial statements or schedules
included or incorporated by reference therein, contained, when filed, any
untrue statement of a material fact or omitted to state a material fact
required to be stated or incorporated by reference therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, provided that the foregoing representation does
not apply to any matter in any ABIOMED SEC Filing filed prior
49
to the date of this Agreement
that was superseded by and corrected in a subsequent ABIOMED SEC Filing filed
prior to the date of this Agreement. The
ABIOMED SEC Filings contain all material information concerning ABIOMED, and no
event or circumstance not disclosed in the ABIOMED SEC Filings has occurred
which would require ABIOMED to disclose such event or circumstance in order to
make the statements in the ABIOMED SEC Filings not misleading on the date
hereof. The consolidated financial
statements of ABIOMED included in the ABIOMED SEC Filings, fairly present, in
accordance with United States generally accepted accounting principles applied
on a consistent basis (except as may be indicated in the notes thereto), the
consolidated financial position of ABIOMED and its consolidated subsidiaries as
of the dates thereof and their consolidated results of operations and changes
in financial position for the periods indicated therein (subject, in the case
of any unaudited interim financial statements, to normal year-end adjustments,
none of which will be material) and complied in all material respects with
applicable accounting requirements and with the published rules and
regulations of the SEC with respect thereto as of their respective dates and
have been prepared in accordance with U.S. GAAP throughout the periods
indicated and consistent with each other.
Except as and to the extent disclosed in the ABIOMED SEC Filings since September 30,
2002, ABIOMED has not changed its accounting methods or practices in any
material respect or materially revalued any of its assets and no events have
occurred which would require ABIOMED to restate its prior reported
earnings. Except as and to the extent
disclosed in the ABIOMED SEC filings, since December 31, 2004, there has
not been any event, occurrence or development which has had, individually, or
in the aggregate, an ABIOMED Material Adverse Effect.
5.6
.
Brokers
Fees.
ABIOMED does not have
and will not have any direct or indirect liability or obligation to pay any
fees or commissions to any broker, finder or investment banker with respect to
the transactions contemplated by this Agreement, other than fees payable to
Adams Harkness, Inc.
5.7
.
Valid Issuance of Shares.
Upon issuance hereunder, the
shares of ABIOMED Common Stock included in the Closing Consideration, and any
such shares issued as Additional or Contingent Consideration shall be validly
issued, fully paid and non-assessable and shall be free and clear of any Liens,
except for the restrictions set forth in this Agreement and the Registration
Rights Agreement, and except that the shares of ABIOMED Common Stock included
in the Escrowed Consideration shall be subject to the provisions of the Escrow
Agreement.
5.8
.
No Undisclosed Liabilities.
ABIOMED has no material
obligations or liabilities of any nature (whether absolute or contingent,
whether liquidated or unliquidated, and whether due or to become due) other
than (i) those set forth in the balance sheet included in ABIOMEDs
Quarterly Report on Form 10-Q for the quarterly period ended December 31,
2004 (the
ABIOMED Balance Sheet
), (ii) contractual
liabilities incurred in the ordinary course of business and not required to be
set forth in the ABIOMED Balance Sheet under U.S. GAAP; (iii) liabilities
that have arisen since December 31, 2004 in the ordinary course of
business; and (iv) the obligations of ABIOMED hereunder.
5.9
.
Disclosure
. No representation or warranty by ABIOMED
contained in this Agreement or in any certificate or other document delivered
or to be delivered by ABIOMED at or prior to the Closing pursuant to this
Agreement, taken as a whole together with the
50
ABIOMED SEC filings, contains
or will contain any untrue statement of a material fact, or omits or will omit
to state any material fact necessary to be stated in light of the circumstances
under which it was or will be made in order to make the statements herein or
therein not misleading.
6.1
.
Closing Efforts
. Each
of the Parties shall use its best efforts, to the extent commercially
reasonable (
reasonable efforts
),
to take all actions and to do all things necessary, proper or advisable to
consummate the transactions contemplated by this Agreement, including using its
reasonable efforts to cause (i) its representations and warranties to
remain true and correct in all material respects through the Closing Date and (ii) the
conditions to the obligations of the other Parties to consummate the
transactions contemplated hereby to be satisfied.
6.2
.
Payment of
Debts.
Prior to or at the
Closing, except as otherwise indicated on Section 6.2 of the Disclosure
Schedules (i) Impella shall pay or otherwise discharge any and all debts
and loans owed by Impella to any of the Impella Stockholders, Impella Persons
or any other Affiliates of Impella and (ii) all Impella Stockholders,
Impella Persons or any other Affiliates of Impella shall pay or otherwise
discharge any and all debts and loans owed by such Impella Stockholder, Impella
Person or any other Affiliate of Impella to Impella; provided, however, that
ABIOMED acknowledges that it has requested and hereby consents to the actions
required to be taken pursuant to this Section 6.2 to the extent that such
debts and loans are reflected on Section 6.2 of the Disclosure Schedules.
6.3
.
Disclosure
Supplements
. Before the
Closing, Impella will supplement or amend the Disclosure Schedule delivered
in connection herewith with respect to any matter arising after the date of
this Agreement which, if existing, occurring or known at the date of this
Agreement, would have been required to be set forth or described in such
Disclosure Schedule or which is necessary to correct any information in
such Disclosure Schedule which has been rendered inaccurate thereby. No supplement or amendment to such Disclosure
Schedule shall have any effect (prior to or at the Closing) for the
purpose of determining satisfaction of the conditions set forth in Section 8.2
or the compliance with the covenants set forth in Article VI hereof. Before the Closing, ABIOMED may supplement or
amend the disclosure schedule delivered pursuant to Article V in
connection herewith with respect to any matter arising after the date of this
Agreement which, if existing, occurring or known at the date of this Agreement,
would have been required to be set forth or described in such disclosure schedule or
which is necessary to correct any information in such disclosure schedule which
has been rendered inaccurate thereby. No
supplement or amendment to such disclosure schedule shall have any effect
(prior to or at the Closing) for the purpose of determining satisfaction of the
conditions set forth in Section 8.3.
6.4
.
Operation of the Business
.
Except as consented to in writing by ABIOMED, from and after the date of
this Agreement until the earlier of the termination of this Agreement in
accordance with its terms or the Closing, Impella shall act and carry on its
business in the usual, regular and ordinary course in substantially the same
manner as previously conducted, pay its debts and Taxes and perform its other
obligations when due (subject to good faith disputes over such debts, Taxes or
obligations), comply with all applicable laws, rules and regulations, and
use
51
reasonable efforts, consistent
with past practices, to maintain and preserve its business organization, assets
and properties, keep available the services of its present officers and
employees and preserve its advantageous business relationships with customers,
strategic partners, suppliers, distributors and others having business dealings
with it to the end that its goodwill and ongoing business shall be unimpaired
as of the Closing Date. Without limiting
the generality of the foregoing, from and after the date of this Agreement
until the earlier of the termination of this Agreement in accordance with its
terms or the Closing, Impella shall not directly or indirectly, do any of the
following without the prior written consent of ABIOMED except as set forth in Section 6.4
of the Disclosure Schedule and as contemplated by this Agreement or the
Related Documents:
(a) t
ake any action or permit any action to
be taken that is intended to or would (or could reasonably be expected to)
result in any of the representations and warranties set forth in this Agreement
being or becoming untrue in any material respect at any time at or prior to the
Closing, or any of the conditions to the consummation of the Transaction and
the other transactions contemplated by this Agreement set forth in Article VIII
not being satisfied, or in any material violation of any provision of this
Agreement
;
(b)
e
nter into any
transaction that has, or would reasonably be expected to have, an Impella
Material Adverse Effect;
(c) (A) declare,
set aside or pay any dividends on, or make any other distributions (whether in
cash, securities or other property) in respect of, any of its capital stock; (B) split,
combine or reclassify any of its capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in substitution
for shares of its capital stock or any of its other securities; or (C) purchase,
redeem or otherwise acquire any shares of its capital stock or any other of its
securities or any rights, warrants or options to acquire any such shares or
other securities;
(d) issue,
deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of
its capital stock, any other voting securities or any securities convertible
into or exchangeable for, or any rights, warrants or options to acquire, any
such shares, voting securities or convertible or exchangeable securities;
(e) assign or
license any Intellectual Property Rights to any Person other than ABIOMED;
(f) amend its
Corporate Charter, standing orders (
Geschäftsordnung
)
of the Supervisory Board or Management Board of Impella or other comparable
charter or organizational documents, except as expressly provided by this
Agreement;
(g) acquire (A) by
merging or consolidating with, or by purchasing all or a substantial portion of
the assets or any stock of, or by any other manner, any business or any
corporation, partnership, joint venture, limited liability company, association
or other business organization or division thereof, or (B) any assets that
are material, in the aggregate, to Impella, except purchases in the ordinary
course of business;
52
(h) whether
or not in the ordinary course of business, sell, dispose of or otherwise
transfer any assets material to Impella, taken as a whole (including any
accounts, leases, contracts or intellectual property, but excluding the sale of
Products in the ordinary course of business);
(i) enter
into an agreement with respect to any merger, consolidation, liquidation or
business combination, or any acquisition or disposition of all or substantially
all of the assets or securities of Impella;
(j) (A) incur
any indebtedness for borrowed money or guarantee any such indebtedness of
another person, (B) issue, sell or amend any debt securities or warrants
or other rights to acquire any debt securities of Impella or any of its
Subsidiaries, guarantee any debt securities of another person, enter into any keep
well or other agreement to maintain any financial statement condition of
another person or enter into any arrangement having the economic effect of any
of the foregoing, (C) make any loans, advances or capital contributions
to, or investment in, any other person, or (D) enter into any hedging
agreement or other financial agreement or arrangement designed to protect
Impella against fluctuations in commodities prices or exchange rates;
(k) make any
changes in accounting methods, principles or practices, except insofar as may
have been required by a change in German GAAP or, except as so required, change
any assumption underlying, or method of calculating, any bad debt, contingency
or other reserve;
(l) modify, amend
or terminate any material contract or agreement to which Impella is a party, or
knowingly waive, release or assign any material rights or claims (including any
write-off or other compromise of any accounts receivable of Impella);
(m) (A) enter
into any contract or agreement relating to the rendering of services or the
distribution, sale or marketing by third parties of the Products of, or
Products licensed by, Impella, except in the ordinary course of business, or (B) license
any material intellectual property rights to or from any third party;
(n) except as
required to comply with applicable law or agreements, plans or arrangements
existing on the date hereof, (A) take any action with respect to, adopt,
enter into, terminate or amend any employment, severance or similar agreement
or benefit plan for the benefit or welfare of any current or former director,
officer, employee or consultant or any collective bargaining agreement, (B) increase
in any material respect the compensation or fringe benefits of, or pay any
bonus to, any director, officer, employee or consultant, (C) amend or
accelerate the payment, right to payment or vesting of any compensation or
benefits, including any outstanding options or restricted stock awards, (D) pay
any material benefit not provided for as of the date of this Agreement under
any benefit plan, (E) grant any awards under any bonus, incentive,
performance or other compensation plan or arrangement or benefit plan,
including the grant of stock options, stock appreciation rights, stock based or
stock related awards, performance units or restricted stock, or the removal of
existing restrictions in any benefit plans or agreements or awards made
thereunder, or (F) take any action other than in the ordinary course of
business to fund or in any other way secure the payment of compensation or
benefits under any employee plan, agreement, contract or arrangement or benefit
plan;
53
(o) initiate,
compromise or settle any material litigation or arbitration proceeding; or
(p)
agree, whether in writing or
otherwise, to do any of the foregoing.
6.5
.
Governmental and Third-Party Notices and Consents
.
(a) Each
Party shall use its reasonable efforts to obtain, at its expense, all waivers,
permits, consents, approvals or other authorizations from Governmental
Authorities, and to effect all registrations, filings and notices with or to
Governmental Authorities, as may be required for such Party to consummate the
transactions contemplated by this Agreement and to otherwise comply with all
applicable laws and regulations in connection with the consummation of the
transactions contemplated by this Agreement.
(b) Impella
shall use its reasonable efforts to obtain, at its expense, all such waivers,
consents or approvals from third parties, and to give all such notices to third
parties, as are set forth on Section 6.5(b) of the Disclosure
Schedule.
6.6
.
Expenses
. ABIOMED shall
bear its own costs and expenses (including legal and broker fees and expenses)
incurred in connection with this Agreement and the transactions contemplated
hereby. Impella Stockholders shall bear
Impellas costs and expenses (including legal and broker fees and expenses)
incurred in connection with this Agreement and the transactions contemplated
hereby,
provided, however
, that up to US$429,000
of fees and disbursements of Impellas counsel shall be paid by ABIOMED
promptly following the Closing. Impella
Stockholders shall bear the costs and expenses (including legal fees and
expenses) of the Stockholders Representative incurred in connection with this
Agreement and the transactions contemplated hereby,
provided
,
however
, that up to US$70,000 of the
reasonable fees and expenses of the Stockholders Representative shall be paid
by ABIOMED if and to the extent that following the Closing and prior to the
termination of the Escrow Agreement (i) such reasonable fees and expenses
have been incurred by the Stockholders Representative and (ii) ABIOMED
has been notified by the Stockholders Representative of such reasonable fees
and expenses;
provided, further,
that the first
US $50,000 of such US$70,000 of fees and expenses shall be deemed to constitute
indemnifiable Damages pursuant to Section 9.1 for which ABIOMED shall be
indemnified by the Impella Stockholders pursuant to the terms of this
Agreement, and the provisions of Section 9.5(c) shall not apply to
any such claim for Damages by ABIOMED, and ABIOMED shall not be obligated to
pay such US $50,000 of fees and expenses until the Stockholders
Representative, on behalf of the Impella Stockholders, shall have executed such
documents as ABIOMED may reasonably request, including a notification to the
Escrow Agent, providing that the Impella Stockholders do not object to such
claim for indemnification. The
provisions of this Section 6.6 are subject to the provisions of Section 10.2(b). Any expenses that were paid by Impella at or
prior to the Closing in violation of this provision may be deducted from the
Escrowed Consideration. If and to the
extent that the actual fees and disbursements of Impellas counsel paid by
ABIOMED are less than US$429,000, ABIOMED shall pay to the Stockholders
Representative, on behalf of the Impella Stockholders, the difference between
such fees and expenses actually paid and US$429,000.
54
6.7
.
Access to Information; Confidentiality; No Shop.
(a) Subject
to the existing mutual confidential disclosure agreement dated as of February 2,
2005, (the
Confidentiality Agreement
),
between Impella and ABIOMED, upon reasonable notice, Impella shall afford to
ABIOMED and/or its Affiliates, and to the officers, employees, accountants,
counsel, financial advisors and other representatives of ABIOMED and/or its
Affiliates, reasonable access during normal business hours during the period
prior to the Closing to all its respective properties, books, contracts,
commitments, personnel and records and, during such period, Impella shall
furnish promptly to ABIOMED, a copy of all information concerning its business,
properties and personnel as ABIOMED may reasonably request. Impella shall not be required to provide
access to or disclose information where such access or disclosure would
contravene any applicable law, rule, regulation, order or decree. Impella shall, and shall cause its officers,
employees, accountants, clinical investigators and other agents to, cooperate
with any such investigation. ABIOMED
will hold, and will cause its respective officers, employees, accountants,
counsel, financial advisors and other affiliates and representatives to hold,
any nonpublic information in accordance with the terms of the Confidentiality
Agreements. If this Agreement is
terminated before the Closing, ABIOMED shall return to Impella all copies held
by ABIOMED or its representatives of such books, records, Tax Returns and
documents, and results of such inspections, assessments, audits and tests, as
well as all other materials received by ABIOMED from or with respect to
Impella.
(b) By the
execution of this Agreement, the terms of the Confidentiality Agreement (a) shall
be extended and shall remain in full force and effect until the second
anniversary of the date of termination of this Agreement pursuant to Section 10.1
and (b) shall be, and hereby are, amended to add the Impella Stockholders
as a party to the Agreement to the same extent, and with the same rights and
obligations thereunder, as Impella.
(c) Until the
earlier of the Closing or the termination of this Agreement pursuant to Section 10.1,
neither the Impella Stockholders nor Impella nor any of its directors,
officers, employees, representatives or agents or other Persons controlled by
it will encourage or solicit or hold discussions or negotiations with, or
provide any information to, or enter into any agreement or understanding with,
any Person, entity or group (other than ABIOMED) concerning the acquisition of
any substantial assets of Impella, the acquisition of any shares, quotas or
other equity ownership interests in Impella or any merger, consolidation,
amalgamation or similar transaction involving Impella. Impella and the Impella Stockholders will
promptly communicate to ABIOMED the terms of any proposal or offer or request for
information which it may receive in respect of any such transaction.
6.8
.
Covenant Not
to Compete; Non-Solicitation of Employees or Customers
.
(a)
Covenant
. In order that ABIOMED may have and enjoy the
full benefit of the Business and in consideration of (and as a condition to)
ABIOMEDs agreement to enter into this Agreement and pay the Consideration,
during the period beginning on the Closing Date and ending on the anniversary
of the Closing Date set forth in the applicable subparagraph (i), (ii) or
(iii) below, the Restricted Person will not, without the written approval
of ABIOMED:
(i) engage, directly or indirectly, in any activity involving the
manufacture, production, marketing, advertising, distribution or sale of
services, devices, systems or methods for
any device that may provide a
clinical utility that is substantially similar to
55
that provided by any of the Products.
For purposes of this section, engage will include having any direct or
indirect interest in any corporation, partnership, limited liability company,
joint venture or other entity, whether as an owner, stockholder, partner,
member, joint venturer, creditor or otherwise, or rendering any direct or
indirect service or assistance to any individual, corporation, partnership,
limited liability company, joint venture or other business entity (whether as
an agent, consultant, or otherwise).
Notwithstanding the foregoing, nothing contained herein shall limit the
right of the Restricted Person to hold and make passive investments in
securities of any Person that are registered on a national securities exchange
or admitted to trading privileges thereon or actively traded in a generally
recognized over-the-counter market;
provided
, the
Restricted Persons aggregate beneficial equity interest therein shall not
exceed 1% of the outstanding shares or interests in such Person. The provisions of this Section 6.8(a)(i) shall
terminate on
the second anniversary
of the Closing Date;
(ii)
directly or indirectly, contact
or solicit (other than by general advertising) for the purpose of offering
employment or hiring, induce or attempt to induce to accept employment, or
actually hire (in each case, whether as an employee, consultant, agent,
independent contractor or otherwise), any employee of ABIOMED or any of its
Affiliates with whom any Impella Person had contact in connection with the
negotiation or implementation of this Agreement.
The provisions of this Section 6.8(a)(ii) shall
terminate on the
second anniversary
of the Closing Date; or
(iii) induce or attempt to induce any customer of or supplier to
the Business, or any Person serving as an investigator in connection with any
clinical trial with respect to any Product, to cease or reduce its or his
business or other relationship with ABIOMED or any of its Affiliates with
respect to the Business or any Product, or
otherwise
interfere with the relationship between ABIOMED or any of its Affiliates and
any such Person (including making any negative statements or communications
concerning ABIOMED or any of its Affiliates or concerning any Product)
.
The provisions of this Section 6.8(a)(iii) shall terminate on
the
second anniversary
of the Closing Date.
(b)
Execution of Non-Competition Agreements
. The Restricted Person agrees to execute, on
or before the Closing Date, a Non-Competition Agreement with ABIOMED in the
form attached as
Appendix 6.8(b)
(the
Non-Competition
Agreement
).
(c)
Judicial Modification
. If the final judgment of a court of competent
jurisdiction declares that any term or provision of this Section 6.8 is
invalid or unenforceable, the Parties agree that the court making the
determination of invalidity or unenforceability shall have the power to reduce
the scope, duration, or geographic area of the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision.
56
7.1
.
Responsibility
for Filing Tax Returns
.
ABIOMED shall prepare on behalf of Impella or cause Impella to prepare
and file or cause to be filed all Tax Returns for Impella which are filed after
the Closing Date.
7.2
.
Tax Matters.
Without the prior written consent of ABIOMED,
Impella shall not, on or prior to the Closing Date, make or change any
election, change an annual accounting period, adopt or change any accounting
method, file any amended Tax Return, enter into any closing agreement, settle
any Tax claim or assessment, surrender any right to claim a refund or Taxes,
consent to any extension or waiver of the limitation period applicable to any
Tax claim or assessment, or take any other similar action relating to the
filing of any Tax Return or the payment of any Tax, if such election, adoption,
change, amendment, agreement, settlement, surrender, consent or other action
would have the effect of increasing the Tax liability of Impella for any period
ending after the Closing Date or decreasing any Tax attribute of Impella
existing on the Closing Date. Effective
upon the Closing, ABIOMED and Impella hereby irrevocably waive, release and
discharge forever the Impella Stockholders, the members of the Management Board
and Supervisory Board of Impella, and each and all of their respective
officers, directors, shareholders, agents, representatives, employees,
attorneys, successors and assigns, from any liabilities (whether contingent,
fixed or unfixed, liquidated or otherwise), obligations, deficiencies, demands,
claims, suits, actions, or causes of action, assessments, losses, costs,
expenses, interest, fines, penalties, actual or punitive damages or costs or
expenses of any and all investigations, proceedings, judgments, remediations,
settlements and compromises of whatever kind or nature arising out of the
matters set forth in Section 3.8(h) of the Disclosure Schedule (including
any right to seek indemnification for such amounts pursuant to Article IX,
hereof); provided, however, ABIOMED
shall be indemnified for any taxes, penalties or other costs required to be
paid by ABIOMED or Impella to any Governmental Authority or other third party
related to any matter set forth on Schedule 3.8(h) of the Disclosure Schedule (other
than the payment of the amounts set forth on Section 3.8(h) of the
Disclosure Schedule that have been paid prior to the date hereof) to the
same extent as if such payments constitute a breach of Section 3.8 of this
Agreement.
7.3
.
Cooperation
on Tax Matters
.
(a) ABIOMED,
Impella and the Impella Stockholders shall cooperate fully, as and to the
extent reasonably requested by the other Party, in connection with the filing
of Tax Returns pursuant to this Article VII and any audit, litigation or
other proceeding with respect to Taxes.
Such cooperation shall include the retention and (upon the other Partys
request) the provision of records and information which are reasonably relevant
to any such audit, litigation or other proceeding and making employees
available on a mutually convenient basis to provide additional information and
explanation of any material provided hereunder.
Impella agrees (i) to retain all books and records with respect to
Tax matters pertinent to Impella relating to any taxable period beginning
before the Closing Date until the expiration of the statute of limitation (and,
to the extent notified by ABIOMED or the Impella Stockholders, any extensions
thereof) of the respective taxable periods, and to abide by all record
retention agreements entered into with any taxing authority, and (ii) to
give the other Party reasonable written notice prior to
57
transferring, destroying or
discarding any such books and records and, if the other Party so requests,
Impella shall allow the other Party to take possession of such books and
records.
(b) ABIOMED
and the Impella Stockholders agree, upon request, to use their best efforts to
obtain any certificate or other document from any Governmental Authority or any
other person as may be necessary to mitigate, reduce or eliminate any Tax that
could be imposed (including, but not limited to, with respect to the
transactions contemplated hereby).
ABIOMED and the Impella Stockholders further agree, upon request, to
provide the other Party with all information that such Party may be required to
report pursuant to any applicable Tax law or regulation.
7.4
.
Certain
Taxes and Fees
. All transfer,
documentary, sales, use, stamp, registration and other such Taxes, and all
conveyance fees, recording charges and other fees and charges (including any
penalties and interest) incurred in connection with consummation of the
transaction contemplated by this Agreement shall be paid by Impella
Stockholders when due, and Impella Stockholders will, at their own expense,
file all necessary Tax Returns and other documentation with respect to all such
Taxes, fees and charges, and, if required by applicable law, ABIOMED will join
in the execution of any such Tax Returns and other documentation.
8.1
.
Conditions
to Each Partys Obligations under this Agreement
. The respective obligations of each Party
under this Agreement shall be subject to the fulfillment at or prior to the
Closing of the following conditions, none of which may be waived:
(a)
Injunctions
. No Party
hereto shall be subject to any order, decree or injunction of a court or agency
of competent jurisdiction which enjoins or prohibits the consummation of the
transactions contemplated by this Agreement;
(b)
Regulatory Approvals
.
All necessary filings have been made with all Governmental Authorities
and all necessary approvals, authorizations and consents of all Governmental
Authorities required to consummate the transactions contemplated by this
Agreement shall have been obtained and shall remain in full force and effect,
and all waiting periods relating to such approvals, authorizations or consents
shall have expired; and
(c)
Litigation
. There
shall not be any pending or threatened Litigation Matter by or before any court
or Governmental Authority that shall seek to restrain, prohibit or invalidate
the transactions contemplated by this Agreement.
8.2
.
Conditions
to Obligations of ABIOMED
. The
obligations of ABIOMED to complete the transactions to be consummated at the
Closing are subject to the satisfaction or waiver at or before the Closing of
all of the following conditions:
(a) The
representations and warranties of Impella and the Impella Stockholders
contained in this Agreement that are qualified as to materiality shall be true
and correct, and any such representations and warranties that are not so
qualified shall be true and correct in all material respects, in each case as
of the date of this Agreement and as of the Closing as though
58
made as of the Closing except
as otherwise specifically contemplated by this Agreement and except as to any
representation or warranty which specifically relates to an earlier date;
(b) Impella
shall have in all material respects complied with and performed all of the
terms, covenants and conditions of this Agreement to be complied with or
performed by Impella and/or the Impella Stockholders at or before the Closing
and the Impella Stockholders shall have in all material respects complied with
and performed all of the terms, covenants and conditions of this Agreement to
be complied with or performed by the Impella Stockholders, at or before the
Closing;
(c) ABIOMED
shall have received an opinion of Fulbright & Jaworski L.L.P., counsel
to Impella, dated as of the Closing Date, substantially in the form set forth
in
Exhibit D1
to this Agreement;
(d) Impella
shall have received an opinion of BFJM Bachem Fervers Janßen Mehrhoff, counsel
to Impella, dated as of the Closing Date, substantially in the form set forth
in
Exhibit D2
to this Agreement;
(e) There
shall not have been any Impella Material Adverse Effect;
(f) The
Restricted Person shall have executed a Non-Competition Agreement in the form
attached as
Appendix 6.8(b)
;
(g) Dr. Rolf
Käse shall have executed a termination agreement in the form attached hereto as
Exhibit E
, and the Impella Supervisory Board shall have approved
such agreement;
(h)
Impella shall have delivered to ABIOMED
each of the Required Consents designated on
Section 8.2(h)
of
the Disclosure Schedule as being required as a condition to the Closing
;
(i) Impella
shall have executed and delivered each of the Related Documents to which it is
a party;
(j) No Litigation
Matter shall be pending or threatened wherein an unfavorable judgment, order,
decree, stipulation or injunction would (i) prevent consummation of any of
the transactions contemplated by this Agreement or (ii) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, and no such judgment, order, decree, stipulation or injunction
shall be in effect;
(k) ABIOMED shall
have received copies of the resignations, effective as of the Closing, of (i) each member of the Supervisory Board and of each
member of the Advisory Board of Impella and (ii) each officer and director
of Impella US (in each case, other than any such resignations which ABIOMED
designates, by written notice to Impella, as unnecessary);
(l) The holders of
Impella Options shall have executed and delivered the Option Termination
Agreements and the holders of Impella Convertible Bonds shall have executed and
delivered the Convertible Bond Termination Agreements;
59
(m) The Impella
Stockholders and the Stockholders Representative shall have executed and
delivered a registration rights and stock restriction agreement in
substantially the form attached hereto as
Exhibit F
(the
Registration Rights Agreement
) and the executed Escrow
Agreement;
(n) Impella shall
have delivered to ABIOMED a certificate (the
Impella
Certificate
) executed by its Chief Executive Officer (or another
Impella officer acceptable to ABIOMED) to the effect that each of the
conditions specified in clauses (a), (b) and (i) (insofar as clause (i) relates
to Litigation Matters involving Impella) of this Section 8.2 is satisfied
in all material respects;
(o) ABIOMED shall
have received from Impella a certificate, dated as of the Closing Date,
executed by the Management Board of Impella, certifying the incumbency of
Impellas executive officers, and the authenticity of the director and
stockholder resolutions authorizing the transactions contemplated by this Agreement;
(p) ABIOMED shall
have received such other certificates and instruments (including a certified
extract from the commercial register of Impella in its jurisdiction of
organization and the various foreign jurisdictions in which it is qualified and
certified charter documents as well as a confirmation of the members of its
management board that no resolutions exist which require registration but have
not yet been entered into the commercial register) as it shall reasonably
request in connection with the Closing; and
(q) the Exclusive
Patent and know-how License Agreement between Impella and Circulite Inc. shall
have been amended in a form acceptable to ABIOMED; which ABIOMED hereby agrees
has occurred pursuant to the second amendment to such license agreement
executed on the date hereof.
8.3
.
Conditions to Obligations of Impella Stockholders
. The obligation of the Impella Stockholders to
complete the transactions to be consummated at the Closing is subject to the
satisfaction on or prior to the Closing of the following additional conditions:
(a) The
representations and warranties of ABIOMED contained in this Agreement that are
qualified as to materiality shall be true and correct and any such
representations and warranties that are not so qualified shall be true and
correct in all material respects, in each case as of the date of this Agreement
and as of the Closing as though made as of the Closing except as otherwise
specifically contemplated by this Agreement and except as to any representation
or warranty which specifically relates to an earlier date;
(b) ABIOMED
shall have in all material respects complied with and performed all of the
terms, covenants and conditions of this Agreement to be complied with or
performed by ABIOMED at or before the Closing;
(c) No
Litigation Matter shall be pending or threatened wherein an unfavorable
judgment, order, decree, stipulation or injunction would (i) prevent
consummation of any of the transactions contemplated by this Agreement or (ii) cause
any of the transactions contemplated by this Agreement to be rescinded
following consummation, and no such judgment, order, decree, stipulation or
injunction shall be in effect;
60
(d) There
shall not have been any ABIOMED Material Adverse Effect;
(e) ABIOMED
shall have delivered to Impella a certificate (the
ABIOMED Certificate
) executed by its President to the effect
that each of the conditions specified in clauses (a) through (c) (insofar
as clause (c) relates to Litigation Matters involving ABIOMED) of
this Section 8.3 is satisfied in all material respects;
(f) ABIOMED
shall have delivered to the Impella Stockholders the Closing Consideration;
(g) ABIOMED
shall have delivered to the Escrow Agent the Escrowed Consideration;
(h) ABIOMED
shall have delivered to the Impella Stockholders an executed Registration
Rights Agreement and an executed Escrow Agreement.
(i) The
Impella Stockholders shall have received an opinion of Foley Hoag LLP, counsel to ABIOMED, dated as
of the Closing Date, substantially in the form set forth in
Exhibit G
to this Agreement; and
(j) The Impella
Stockholders shall have received such other certificates and instruments
(including a certificate of good standing in its jurisdiction of organization
and certified charter documents and certificates as to the incumbency of
officers and the adoption of authorizing resolutions of ABIOMED) as they shall
reasonably request in connection with the Closing.
9.1
.
Indemnification by the Impella Stockholders
. From and after the Closing, the Impella
Stockholders severally shall indemnify ABIOMED in respect of, and hold it
harmless against, any and all debts, obligations and other liabilities (whether
absolute, accrued, contingent, fixed or otherwise, or whether known or unknown,
or due or to become due or otherwise), monetary damages, fines, fees,
penalties, interest obligations, deficiencies, losses and expenses (including
amounts paid in settlement, interest, court costs, costs of investigators, fees
and expenses of attorneys, accountants, financial advisors and other experts,
and other expenses of litigation) (
Damages
)
incurred or suffered by ABIOMED, any Affiliate of ABIOMED,
and each of its and their
respective directors, officers and employees
resulting from,
relating to or constituting:
(a) any
breach of any representation or warranty of Impella or the Impella Stockholders
contained in this Agreement or in any Related Document;
(b) any
failure by Impella to perform any covenant or agreement of Impella contained in
this Agreement or in any Related Document prior to the Closing and any failure
by the Impella Stockholders to perform any covenant or agreement of the Impella
Stockholders contained in this Agreement or in any Related Document; or
61
(c) any
payment by ABIOMED of the US$50,000 of fees and expenses of the Stockholders
Representative pursuant to Section 6.6.
9.2
.
Indemnification by ABIOMED
.
From and after the Closing, ABIOMED shall indemnify Impella Stockholders
in respect of, and hold them harmless against, any and all Damages incurred or
suffered by Impella Stockholders resulting from, relating to or constituting
any misrepresentation, breach of a representation or warranty or failure to
perform any covenant or agreement of ABIOMED contained in this Agreement, any
Related Documents or the ABIOMED Certificate.
9.3
.
Indemnification Claims
.
(a) A party
entitled, or seeking to assert rights, to indemnification under this Article IX
(an
Indemnified Party
) shall
give written notification to the party from whom indemnification is sought (an
Indemnifying Party
) of the commencement of
any suit or proceeding relating to a third party claim for which
indemnification pursuant to this Article IX may be sought. Such notification shall be given within 30
business days after receipt by the Indemnified Party of notice of such suit or
proceeding, and shall describe in reasonable detail (to the extent known by the
Indemnified Party) the facts constituting the basis for such suit or proceeding
and the amount of the claimed damages; provided, however, that no delay on the
part of the Indemnified Party in notifying the Indemnifying Party shall relieve
the Indemnifying Party of any liability or obligation hereunder except to the
extent of any damage or liability caused by or arising out of such
failure. The Indemnified Party shall
control the defense of such suit or proceeding and the Indemnifying Party may
participate therein at its own expense.
The reasonable fees and expenses of counsel to the Indemnified Party
shall be considered
Damages
for
purposes of this Agreement. The
Indemnified Party shall keep the Indemnifying Party advised of the status of
such suit or proceeding and the defense thereof and shall consider in good
faith recommendations made by the Indemnifying Party with respect thereto. The Indemnifying Party shall furnish the
Indemnified Party with such information as it may have with respect to such
suit or proceeding and shall otherwise cooperate with and assist the
Indemnified Party in the defense of such suit or proceeding. The Indemnified Party shall not agree to any
settlement of, or the entry of any judgment arising from, any such suit or
proceeding without the prior written consent of the Indemnifying Party, which
shall not be unreasonably withheld or delayed.
(b) In order
to seek indemnification under this Article IX, an Indemnified Party shall
give written notification (a
Claim Notice
)
to the Indemnifying Party which contains (i) a description and the amount
(the
Claimed Amount
) of any
Damages incurred or reasonably expected to be incurred by the Indemnified
Party, (ii) a statement that the Indemnified Party is entitled to
indemnification under this Article IX for such Damages and a reasonable
explanation of the basis therefor, and (iii) a demand for payment (in the
manner provided in paragraph (c) below) in the amount of such
Damages.
(c) Within 20
days after delivery of a Claim Notice, the Indemnifying Party shall deliver to
the Indemnified Party a written response (the
Response
) in which the Indemnifying Party shall: (i) agree
that the Indemnified Party is entitled to receive all of the Claimed Amount (in
which case the Response shall be accompanied by a payment by the Indemnifying
Party to
62
the Indemnified Party of the
Claimed Amount, by check or by wire transfer), or (if the Indemnified Party is
ABIOMED) the Response shall include written instructions to collect the Claimed
Amount from the Escrow Account pursuant to the terms of the Escrow Agreement; (ii) agree
that the Indemnified Party is entitled to receive part, but not all, of the
Claimed Amount (the
Agreed Amount
)
(in which case the Response shall be accompanied by a payment by the
Indemnifying Party to the Indemnified Party of the Agreed Amount, by check or
by wire transfer), or (if the Indemnified Party is ABIOMED) the Response shall
include written instructions to collect the Agreed Amount from the Escrow
Account pursuant to the terms of the Escrow Agreement; or (iii) dispute
that the Indemnified Party is entitled to receive any of the Claimed
Amount. If no Response is delivered
within 20 days after delivery of a Claim Notice, the Indemnifying Party shall
be deemed to have agreed that the Indemnified Party is entitled to receive all
of the Claimed Amount. If the
Indemnifying Party shall not have agreed or be deemed to agree that the
Indemnified Party is entitled to receive all of the Claimed Amount, such
dispute shall be resolved pursuant to the procedures in Article XI
hereof. If the Indemnified Party is
ABIOMED, it shall seek to satisfy any Claimed Amount and any Agreed Amount by
first collecting such Claimed Amount and/or Agreed Amount from the Escrow
Account; provided, however, that if insufficient funds are available in the
Escrow Account to cover such Claimed Amount and/or Agreed Amount, the
Indemnifying Party shall repay Consideration previously paid in an amount
sufficient to satisfy such Claimed Amount and/or Agreed Amount determined
pursuant to this Article IX to be due that has not otherwise been
paid. Subject to Section 9.5 of
this Article IX, to the extent any Agreed Amount or Claimed Amount that
the Indemnifying Party has agreed the Indemnified Party is entitled to in its
Response, or that the Indemnified Party is determined to be entitled to
pursuant to the procedures in Article IX and Article XI hereof,
exceeds the then-current value of the Escrow Account determined pursuant to Section 9.5(d) below,
ABIOMED shall be entitled to obtain such amount directly from the Impella
Stockholders.
(d) For
purposes of calculating the value of shares of ABIOMED Common Stock in the
Escrow Account to be used to satisfy any indemnification obligation of the
Impella Stockholders hereunder, each such share of ABIOMED Common Stock shall
have a value equal to the closing sale price on the NASDAQ National Market of
shares of ABIOMED Common Stock on the last day of trading prior to the date of
this Agreement.
(e) Notwithstanding
the other provisions of this Section 9.3, if a third party asserts (other
than by means of a lawsuit) that an Indemnified Party is liable to such third
party for a monetary or other obligation which may constitute or result in
Damages for which such Indemnified Party may be entitled to indemnification
pursuant to this Article IX, and such Indemnified Party reasonably
determines that it has a valid business reason to fulfill such obligation, then
(i) such Indemnified Party shall be entitled to satisfy such obligation,
without prior notice to or consent from the Indemnifying Party, (ii) such
Indemnified Party may subsequently make a claim for indemnification in
accordance with the provisions of this Article IX, and (iii) such Indemnified
Party shall be reimbursed, in accordance with the provisions of this Article IX,
for any such Damages for which it is entitled to indemnification pursuant to
this Article IX (subject to the right of the Indemnifying Party to dispute
the Indemnified Partys entitlement to indemnification, or the amount for which
it is entitled to indemnification, and the other rights of the Indemnifying
Party under the terms of this Article IX).
63
(f) Any
amounts paid pursuant to this Article IX shall be treated for tax purposes
as an adjustment to the Consideration.
9.4
.
Survival of Representations, Warranties, Covenants and Other Agreements
. All representations and warranties, covenants
and other agreements contained in this Agreement shall survive the Closing and
any investigation at any time made by or on behalf of an Indemnified Party and
shall expire eighteen months following the Closing, except that (i) the
representations and warranties set forth in Sections 3.2(b) and 4.1
(stock ownership) shall survive the Closing without limitation, and (ii) the
representations and warranties set forth in Sections 3.8 (taxes) shall
survive until 30 days following expiration of all statutes of limitation
applicable to the matters referred to therein.
If an Indemnified Party delivers to an Indemnifying Party, before
expiration of a representation or warranty, either a Claim Notice based upon a
breach of such representation or warranty, or a notice that, as a result of a legal
proceeding instituted by or claim made by a third party, the Indemnified Party
reasonably expects to incur Damages (an
Expected
Claim Notice
), then the applicable representation or warranty shall
survive until, but only for purposes of, the resolution of the matter covered
by such notice. If the legal proceeding
or written claim with respect to which an Expected Claim Notice has been given
is definitively withdrawn or resolved in favor of the Indemnified Party, the
Indemnified Party shall promptly so notify the Indemnifying Party.
9.5
.
Indemnification Limitations; Limits on Liability; Miscellaneous
.
(a) Except
with respect to claims based on fraud, after the Closing, the rights of the
Indemnified Parties under this Article IX shall be the exclusive remedy of
the Indemnified Parties with respect to claims resulting from or relating to
any misrepresentation, breach of warranty or failure to perform any covenant or
agreement contained in this Agreement, the Related Documents or any certificate
or document delivered pursuant hereto and thereto.
(b) Except
with respect to claims based on fraud or any breach of the representation set
forth in Section 4.1(a) (Ownership of Impella Outstanding Capital
Stock),
(i) the
maximum liability of each of ABIOMED or the Impella Stockholders for breaches
of representations and warranties hereunder shall be an amount equal to the
product of (A) 420,000 times (B) the closing sale price on the NASDAQ
National Market of shares of ABIOMED Common Stock on the last trading day prior
to the date of this Agreement (the
Indemnification
Cap
), and
(ii) each
Impella Stockholder shall be liable severally up to its Pro Rata Share of the
Indemnification Cap;
and with respect to claims based on fraud or any breach of the
representation set forth in Section 4.1(a), no Impella Stockholder who did
not participate in such fraud or such breach shall be liable for any Damages or
other amounts in excess of the lesser of the Consideration they have actually
received pursuant to this Agreement and their Pro Rata Share of such Damages or
other amounts..
(c) Neither
ABIOMED nor the Impella Stockholders shall be entitled to make a claim for
indemnification under this Article IX until the aggregate Damages suffered
or incurred
64
by such Party shall have
exceeded US$100,000 (in which event such Party shall be entitled to receive all
Damages without any deductible);
provided, however,
that indemnification under Section 9.1(c) shall be indemnifiable without
regard to this US$100,000 threshold and that any such Damages resulting from Section 9.1(c) shall
not be counted towards determining whether the aggregate Damages suffered or
incurred by ABIOMED have exceeded this US$100,000 threshold.
(d) The amount
of any Damages indemnifiable pursuant to this Article IX shall be reduced (i) to
the extent that an Indemnified Party actually realizes, by reason of such
Damages, a Tax benefit that results in a reduction in actual Taxes paid for the
tax year in which such Damages occur (a
Tax Benefit
),
recognizing that an Indemnified Party with net operating loss carry forwards or
other similar tax considerations is unlikely to ever actually realize a Tax
Benefit from such Damages, and (ii) by the amount of any insurance
proceeds actually received by the Indemnified Party in respect of such claim
(and if such proceeds are received following an indemnification payment in
respect of the relevant claim, the Indemnified Party shall pay to the
Indemnifying Party an amount equal to the lesser of (x) the amount of such
proceeds less expenses of collection and (y) the amount of any indemnification
payments made by the Indemnifying Party in respect of the relevant claim).
(e) An
Indemnified Party may not recover punitive, consequential, exemplary or
indirect damages in any claim made for indemnification or otherwise with
respect to this Agreement, the Related Documents, any certificate, exhibit or schedule hereto
or thereto, and the transactions contemplated hereby and thereby.
(f) Nothing
herein shall be deemed to relieve any Indemnified Party hereto from any duty to
mitigate any Damages under applicable law.
(g) No
Impella Stockholder shall have any rights against Impella under this Agreement,
whether by reason of this Article IX or otherwise.
(h) The
Impella Stockholders, at their option, may satisfy any indemnification
obligations in excess of the value of the Escrow Account with cash or shares of
ABIOMED Common Stock. Each share of
ABIOMED Common Stock that is so used to satisfy such indemnification
obligations shall be deemed to have a value for such purpose equal to the
average of the daily volume weighted average price per share of ABIOMED Common
Stock on the Nasdaq National Market System, based on trading between 9:30 a.m.
and 4:00 p.m. Eastern Time, as reported by Bloomberg Financial L.P., on
the twenty (20) trading days before the date of the Claim Notice delivered to
the Indemnifying Party with respect to such obligation.
10.1
.
Termination of Agreement
.
The Parties may terminate this Agreement prior to the Closing, as
provided below:
(a) by mutual
written consent of the Impella Stockholders and ABIOMED;
65
(b) by either
ABIOMED or the Impella Stockholders if the Closing shall not have occurred by May 31,
2005 (the
Termination Date
) (
provided
that the right to terminate this
Agreement under this Section 10.1(b) shall not be available to any
Party whose failure to fulfill any obligation under this Agreement has been a
principal cause of, or resulted in the failure of, the Closing to occur on or
before the Termination Date);
(c) by
ABIOMED in the event Impella or the Impella Stockholders are in material breach
of any representation, warranty or covenant contained in this Agreement, and
such breach, individually or in combination with any other such breach, (i) would
cause the conditions set forth in Section 8.2(a) or Section 8.2(b) not
to be satisfied and (ii) is not cured within 20 days following delivery by
ABIOMED to Impella of written notice setting forth in reasonable detail the
circumstances giving rise to such breach;
(d) by the
Impella Stockholders in the event ABIOMED is in material breach of any
representation, warranty or covenant contained in this Agreement, and such
breach, individually or in combination with any other such breach, (i) would
cause the conditions set forth in clauses Section 8.3(a) or Section 8.3(b) not
to be satisfied and (ii) is not cured within 20 days following delivery by
Impella to ABIOMED of written notice setting forth in reasonable detail the
circumstances giving rise to such breach;
(e) By either
ABIOMED or the Impella Stockholders, if any permanent injunction or action by
any Governmental Authority preventing the consummation of the Transaction shall
have become final and nonappealable; or
(f) At the
election of either the Impella Stockholders or ABIOMED, upon written notice to
the other, if it has become reasonably, objectively certain that any condition
required to be satisfied under Article VIII hereof, other than a condition
that is reasonably within the electing Partys control, will not be satisfied
on or prior to the Termination Date.
10.2
.
Effect of
Termination
.
(a) In the
event of termination of this Agreement and abandonment of the Transaction by
either the Impella Stockholders or ABIOMED as provided in Section 10.1,
this Agreement shall forthwith terminate (except as provided in Section 9.4)
and there shall be no liability or obligation on the part of ABIOMED, Impella
or the Impella Stockholders, except (i) as provided in Section 10.2(b) and
(ii) notwithstanding anything to the contrary contained in this Agreement,
each Party shall remain liable (in an action at law or otherwise) for any
liabilities or damages arising out of a material breach of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
(b) If this
Agreement is terminated as provided in Section 10.1 as a result of any
breach of a representation, warranty, covenant or other agreement which is
caused by the fraud, gross negligence or willful or intentional breach of a
Party hereto, such Party shall be liable to the other Party for all
out-of-pocket costs and expenses, including the reasonable fees and expenses of
lawyers, accountants and investment bankers, incurred by such other Party in
connection with the entering into of this Agreement and the carrying out of any
and all acts contemplated hereunder (
Expenses
). The payment of Expenses is not an exclusive
remedy,
66
but is in addition to any other
rights or remedies available to the Parties hereto (whether at law or in
equity) arising out of the fraud or gross negligence of a Party or willful or intentional
breach of any provision of this Agreement or under this Agreement.
11.1
.
Negotiation
. In the event of any dispute or disagreement
between ABIOMED and the Impella Stockholders represented by the Stockholders
Representative as to the interpretation of any provision of this Agreement or
any other Related Document (or the performance of any obligations hereunder or
thereunder), the matter, upon written request of either Party, shall be
referred to representatives of the Parties for decision, with ABIOMED to be
represented by a senior executive officer (the
Representatives
). The Representatives shall promptly meet in a
good faith effort to resolve the dispute.
If the Representatives do not agree upon a decision within 30 calendar
days after written request for the matter to be referred to them, each of
ABIOMED and the Stockholders Representative shall be free to exercise the
remedies available under Section 11.2 below.
11.2
.
Submission to Arbitration
.
If ABIOMED and the Stockholders
Representative (on behalf of the Impella Stockholders) are unable to resolve
such dispute pursuant to Section 11.1, the dispute shall be submitted to
binding arbitration to be conducted in Boston, Massachusetts before a panel of
arbitrators (the
Arbitrators
) in
accordance with the ICC Rules then in effect and the further procedures
set forth herein. If the dispute
involves an amount less than US$500,000, then it shall be arbitrated using a
single Arbitrator and if the dispute involves an amount equal to or greater
than US$500,000, then it shall be arbitrated using a panel of three
Arbitrators.
(a)
Applicable Rules
. In the event of any conflict between the ICC Rules in
effect from time to time and the provisions of this Agreement, the provisions
of this Agreement shall prevail and be controlling.
(b)
Commencement of Arbitration
. Either ABIOMED or the Stockholders
Representative (on behalf of the Impella Stockholders) may commence the
arbitration by filing a Request for Arbitration in accordance with the ICC
Rules, and the other shall respond in accordance with said Rules. If three person arbitration is called for,
then each of ABIOMED and the Stockholders Representative shall select one
Arbitrator, and the two Arbitrators so chosen shall jointly select a third in
accordance with the ICC Rules.
(c)
Applicable Law
. The substantive law to be applied in the
arbitration shall be the internal laws of the State of Delaware. Any Award rendered by the Arbitrators shall
be final, conclusive and binding upon the Parties hereto, and judgment thereon
may be entered and enforced in any state or federal court of competent
jurisdiction.
(d)
Limitations on Authority of Arbitrators
. The Arbitrators shall have no power or
authority, under the ICC Rules or otherwise, to (x) modify or
disregard any provision of this Agreement, (y) address or resolve any
issue not submitted by the Parties, or (z) award any damages other than
compensatory damages, and are specifically precluded from awarding
67
punitive, consequential,
exemplary or indirect damages,
provided, however,
that, the Arbitrators may provide
for the payment of
punitive, consequential or indirect
damages to the extent required to
reimburse (under the indemnification provisions of this Agreement) a Party for
damages awarded against such Party in favor of a third party in another forum
.
(e)
Costs and Expenses
. In connection with any arbitration proceeding
pursuant to this Agreement, unless the Arbitrators shall determine otherwise,
each Party shall bear its own costs and expenses. Notwithstanding the foregoing, each of
ABIOMED and the Stockholders Representative (on behalf of the Impella
Stockholders) shall be responsible for one-half of the fees and costs of the
International Court of Arbitration and the Arbitrators, the costs and expenses
of obtaining the facility where the arbitration hearing is held, and such other
costs and expenses as the Arbitrators may determine to be directly related to
the conduct of the arbitration and appropriately borne jointly by the Parties.
(f)
Court Proceedings
. Notwithstanding the applicability of the ICC Rules regarding
Conservatory and Interim Measures, a Party may initiate an action in a court of
competent jurisdiction in the State of Delaware and may seek interim measures
(including temporary restraining orders and preliminary injunctions) necessary
to protect the interests of such Party pending the arbitration. In such case, the court shall be free to act
on all requests for interim measures from time to time, but shall otherwise
stay the action pending the arbitration (which the court may compel). If any such action is still pending at the
time of the Arbitrators Award, either Party may apply to such court for entry
of judgment on, and enforcement of, the Arbitrators Award, including any
equitable relief awarded by the Arbitrators.
11.3
.
Arbitration Remedy Exclusive
.
Except as provided in Section 11.2(f) (with respect to interim
relief), the Parties agree and understand that arbitration pursuant to Section 11.2
is the exclusive remedy available to the Parties with respect to any dispute,
disagreement, claim or controversy arising out of or relating to this
Agreement, any Related Document or the transactions contemplated hereby or
thereby that cannot be resolved through negotiation among the Parties.
12.1
.
Press Releases and Announcements
. None of the Parties, nor any representatives
or agents of any of the Parties shall issue any press release or public
announcement relating to the subject matter of this Agreement without the prior
written approval of ABIOMED and Impella.
12.2
.
No Third Party Beneficiaries
.
This Agreement shall not confer any rights or remedies upon any person
other than the Parties and their respective successors and permitted assigns
except as expressly provided for in this Agreement.
12.3
.
Entire Agreement
. This
Agreement (including the Confidentiality Agreement and the documents referred
to in Article VIII and elsewhere herein) constitutes the entire agreement
among the Parties and supersedes any prior understandings, agreements or
representations by or among the Parties, written or oral, with respect to the
subject matter hereof.
68
12.4
.
Public
Disclosure
. ABIOMED shall
control the timing and content of any press release or other public statement
with respect to the transactions contemplated hereby, but shall consult with
Impella on such matters to the extent practicable. ABIOMED shall be permitted to describe and
file this Agreement and the Related Documents in accordance with the reporting
requirements of the Exchange Act and the Securities Act, or otherwise.
12.5
.
Succession and Assignment
.
This Agreement shall be binding upon and inure to the benefit of the
Parties named herein and their respective successors and permitted
assigns. No Party may assign either this
Agreement or any of its rights, interests or obligations hereunder without the
prior written approval of the other Parties; provided that ABIOMED may assign
its rights, interests and obligations hereunder to any Affiliate of ABIOMED.
12.6
.
Counterparts and Facsimile Signature
. This Agreement and all Exhibits, Schedules
and Appendices may be executed in two or more counterparts, all of which shall
be considered one and the same agreement and shall become effective when two or
more counterparts have been signed by each of the Parties and delivered to the
other Parties, it being understood that all Parties need not sign the same
counterpart. Facsimile execution and
delivery of this Agreement and any Exhibits, Schedules and Appendices by any of the Parties shall be legal, valid and
binding execution and delivery of such document for all purposes.
12.7
.
Notices
. All notices,
requests, demands, claims, and other communications hereunder shall be in
writing. Any notice, request, demand,
claim or other communication hereunder shall be deemed duly delivered two
business days after it is sent via a reputable international overnight courier
service, in each case to the intended recipient as set forth below:
If to
Impella:
|
|
|
|
|
|
Impella CardioSystems AG
|
|
|
Neuenhofer Weg 3
|
|
|
D-52074 Aachen, Germany
|
|
|
Attention:
|
|
|
Facsimile:
|
|
|
|
|
|
With a required
copy to:
|
|
|
|
|
|
Fulbright & Jaworski, L.L.P.
|
|
|
666 Fifth Avenue
|
|
|
New York, New York 10103
|
|
|
Attn: Joseph F. Daniels, Esq.
|
|
|
Facsimile: (212) 318-3400
|
|
|
|
|
|
If to the
Stockholders Representative (with a required copy to Fulbright &
Jaworski, L.L.P. at the address set forth above.):
|
|
|
|
|
|
Accelerated Technologies, Inc.
|
|
|
401 Hackensack Avenue
|
|
|
Hackensack, New Jersey 07601
|
|
|
USA
|
|
|
69
Attention:
|
Richard
Geoffrion
|
Facsimile:
|
(201) 487-2005
|
|
If to
ABIOMED:
|
|
ABIOMED, Inc.
|
22 Cherry Hill Drive
|
Danvers, MA 01923
|
|
|
USA
|
|
|
Attention:
|
President
|
Facsimile:
|
(01) 978-777-8411
|
|
|
|
With a
required copy to:
|
|
|
|
|
|
Foley Hoag LLP
|
|
|
155 Seaport Boulevard
|
|
|
Boston, Massachusetts 02210
|
|
|
USA
|
Attention:
|
Peter M. Rosenblum, Esq.
|
Facsimile:
|
(01) 617 832-7000
|
|
|
|
|
and
|
|
|
|
|
|
Freshfields Bruckhaus Deringer
|
|
|
Taunusanlage 11
|
|
|
60329 Frankfurt Am Main
|
|
|
Germany
|
|
|
Attention: Dr. Karsten Müller-Eising
|
|
|
Facsimile: (49) 69 23 26 64
|
|
|
|
|
|
|
|
|
Any Party may give
any notice, request, demand, claim or other communication hereunder using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail or electronic mail), but no such notice,
request, demand, claim or other communication shall be deemed to have been duly
given unless and until it actually is received by the Party for whom it is
intended. Any Party may change the
address to which notices, requests, demands, claims and other communications
hereunder are to be delivered by giving the other Parties notice in the manner
herein set forth.
12.8
.
Governing Law
. This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Delaware without giving effect to any choice or conflict
of law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of laws of any jurisdictions
other than those of the State of Delaware.
The English language version of this Agreement shall be deemed to be the
official text hereof, notwithstanding translations in any other language.
12.9
.
Submission to Jurisdiction
.
The provisions of this Section 12.9 are intended to govern actions
brought pursuant to Section 11.2(f) and shall not be construed to
permit the
70
Parties to bring any other
action in court. Each of the Parties
submits to the jurisdiction of all state or federal courts sitting in the State
of Delaware in any suit, action or proceeding permitted by and arising out of
or relating to this Agreement, agrees that all claims in respect of any suit,
action or proceeding may be heard and determined in any such court, and
irrevocably and unconditionally agrees not to bring any permitted suit, action
or proceeding in any other court.
Service of process, summons, notice or document by mail to a Partys
address set forth above shall be effective service of process for any suit,
action or proceeding brought in any such court.
12.10
.
Amendments and Waivers
.
No amendment of any provision of this Agreement shall be valid unless
the same shall be in writing and signed by each of ABIOMED and the Stockholders
Representative and, if such amendment is entered into prior to the Closing,
Impella. No waiver of any right or
remedy hereunder shall be valid unless the same shall be in writing and signed
by such of the Parties (ABIOMED, the Stockholders Representative or Impella)
as are giving such waiver. No waiver by
any Party with respect to any default, misrepresentation or breach of warranty
or covenant hereunder shall be deemed to extend to any prior or subsequent
default, misrepresentation or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
12.11
.
Severability
. Any term
or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability
of the remaining terms and provisions hereof or the validity or enforceability
of the offending term or provision in any other situation or in any other
jurisdiction. If the final judgment of a
court of competent jurisdiction declares that any term or provision hereof is
invalid or unenforceable, the Parties agree that the court making the
determination of invalidity or unenforceability shall have the power to limit
the term or provision, to delete specific words or phrases, or to replace any
invalid or unenforceable term or provision with a term or provision that is
valid and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified.
12.12
.
Exhibits
. All Exhibits and Schedules mentioned in this
Agreement shall be attached to this Agreement, and shall form an integral part
hereof. All capitalized terms defined in
this Agreement which are used in any Exhibit shall, unless the context
otherwise requires, have the same meaning therein as given herein.
12.13
.
Interpretation
. When
reference is made in this Agreement to an Article or a Section, such
reference shall be to an Article or Section of this Agreement, unless
otherwise indicated.
References to Sections include
subsections, which are part of the related Section (
e.g
.,
a section numbered Section 5.5(a) would be part of Section 5.5
and references to Section 5.5 would also refer to material contained in
the subsection described as Section 5.5(a)).
The recitals hereto constitute
an integral part of this Agreement. The
Table of Contents and headings contained in this Agreement are for convenience
of reference only and shall not affect in any way the meaning or interpretation
of this Agreement. The language used in
this Agreement shall be deemed to be the language chosen by the Parties hereto
to express their mutual intent, and no rule of strict construction shall
be applied against any Party. Whenever
the context may require, any pronouns used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural, and vice versa. Any reference to any statute or law shall be
deemed also to refer to all rules and
71
regulations promulgated
thereunder, unless the context requires otherwise. Whenever the words include, includes or including
are used in this Agreement, they shall be deemed to be followed by the words without
limitation. No summary of this
Agreement prepared by any Party shall affect the meaning or interpretation of
this Agreement.
12.14
.
Injunctive Relief
. The
Parties hereto agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached.
It is accordingly agreed that the Parties shall be entitled to an
injunction or injunctions (as provided in Section 11.2(f)) to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement, this being in addition to any other remedy to which the
Parties are entitled at law or in equity.
[SIGNATURE PAGE FOLLOWS]
72
IN WITNESS
WHEREOF, the Parties have caused this Agreement to be signed as of the date
first written above.
|
ABIOMED, INC.
|
|
|
|
By
|
/s/
Michael R. Minogue
|
|
|
Name:
Michael R. Minogue
|
|
Title:
CEO & President
|
|
|
|
|
|
IMPELLA CARDIOSYSTEMS AG
|
|
|
|
By
|
/s/
Rolf Käse
|
|
|
Name: Rolf
Käse
|
|
Title: CEO
|
|
|
|
|
|
STOCKHOLDERS REPRESENTATIVE
|
|
|
|
ACCELERATED TECHNOLOGIES, INC.
|
|
|
|
By
|
/s/
John P. Brancaccio
|
|
|
Name: John
P. Brancaccio
|
|
Title: CFO
|
[Signature Page to Share Purchase Agreement]
|
IMPELLA STOCKHOLDERS
|
|
|
|
|
|
ACCELERATED
TECHNOLOGIES, INC.
|
|
|
|
By
|
/s/
John P. Brancaccio
|
|
|
|
Name: John P. Brancaccio
|
|
|
Title: CFO
|
|
|
|
|
|
MRNA FUND II L.P.
|
|
By: OBP Management IV L.P., its General Partner
|
|
|
|
|
|
By:
|
/s/ Jeffrey T. Barnes
|
|
|
|
Name: Jeffrey T. Barnes
|
|
|
Title: General Partner
|
|
|
|
|
|
OXFORD BIOSCIENCE PARTNERS IV L.P.
|
|
By:
OBP Management IV L.P., its General Partner
|
|
|
|
|
|
By:
|
/s/ Jeffrey T. Barnes
|
|
|
|
Name: Jeffrey T. Barnes
|
|
|
Title: General Partner
|
|
GIZA EXECUTIVE VENTURE FUND III L.P.
|
|
|
|
|
|
By:
|
/s/ Avi Molcho
|
|
|
Name: Avi Molcho
|
|
Title: Managing Director
|
|
|
|
|
|
By:
|
/s/ Zvi Schecter
|
|
|
Name: Zvi Schechter
|
|
Title:
Managing Director
|
|
|
|
|
|
GIZA ALPINVEST VENTURE FUND III L.P.
|
|
|
|
|
|
By:
|
/s/ Avi Molcho
|
|
|
Name: Avi Molcho
|
|
Title: Managing Director
|
|
|
|
|
|
By:
|
/s/ Zvi Schecter
|
|
|
Name: Zvi Schechter
|
|
Title:
Managing Director
|
|
|
|
|
|
GIZA GE VENTURE FUND III L.P.
|
|
|
|
|
|
By:
|
/s/ Avi Molcho
|
|
|
Name: Avi Molcho
|
|
Title: Managing Director
|
|
|
|
|
|
By:
|
/s/ Zvi Schecter
|
|
|
Name: Zvi Schechter
|
|
Title: Managing
Director
|
|
GIZA GMULOT VENTURE FUND III L.P.
|
|
|
|
|
|
By:
|
/s/ Avi Molcho
|
|
|
Name: Avi Molcho
|
|
Title: Managing Director
|
|
|
|
|
|
By:
|
/s/ Zvi Schecter
|
|
|
Name: Zvi Schechter
|
|
Title:
Managing Director
|
|
|
|
|
|
GIZA VENTURE FUND III L.P.
|
|
|
|
|
|
By:
|
/s/ Avi Molcho
|
|
|
Name: Avi Molcho
|
|
Title: Managing Director
|
|
|
|
|
|
By:
|
/s/ Zvi
Schecter
|
|
|
Name: Zvi Schechter
|
|
Title:
Managing Director
|
|
/s/
Donald S. Baim
|
|
|
Dr. Donald
S. Baim
|
|
|
|
|
|
|
|
|
/s/
Daniel Burkhoff
|
|
|
Dr. Daniel
Burkhoff
|
|
|
|
|
|
|
|
|
/s/
Peter J. Fitzgerald
|
|
|
Dr. Peter
J. Fitzgerald
|
|
|
|
|
|
|
|
/s/
Nina Frigell
|
|
|
Nina Frigell
|
|
|
|
|
|
|
|
/s/
Richard Geoffrion
|
|
|
Richard
Geoffrion
|
|
|
|
|
|
|
|
|
/s/
Martin B. Leon
|
|
|
Dr. Martin
B. Leon
|
|
|
|
|
|
|
|
|
/s/
Mark Maguire
|
|
|
Mark Maguire
|
|
|
|
|
|
|
|
|
/s/
Arthur Pergament
|
|
|
Arthur
Pergament
|
|
|
|
|
|
|
|
|
/s/
Paul Spence
|
|
|
Dr. Paul
Spence
|
|
|
|
|
|
|
|
|
/s/
Paul S. Teirstein
|
|
|
Dr. Paul
S. Teirstein
|
|
|
|
|
|
|
|
|
/s/ Eberhard Grube
|
|
|
Dr. Eberhard Grube
|
|
|
|
|
|
|
ABN AMRO PARTICIPATIES B.V.
|
|
|
|
|
|
By:
|
/s/ M. A. van Osis
|
|
|
Name: M. A. van Osis
|
|
Director
|
|
|
|
|
|
By:
|
/s/ LPA Bergstein
|
|
|
Name: LPA Bergstein
|
|
Director
|
|
MEDICA II INVESTMENTS (INTERNATIONAL)
L.P.
|
|
|
|
|
|
By:
|
/s/ Yuval
Binur
|
|
|
Name: Yuval Binur
|
|
Title: GP
|
|
|
|
By:
|
|
|
|
Name:
|
|
Title:
|
|
|
|
|
|
MEDICA II INVESTMENTS (P.F) (ISRAEL) L.P.
|
|
|
|
|
|
By:
|
/s/ Yuval
Binur
|
|
|
Name: Yuval Binur
|
|
Title: GP
|
|
|
|
By:
|
|
|
|
Name:
|
|
Title:
|
|
|
|
MEDICA II INVESTMENTS (ISRAEL) L.P.
|
|
|
|
|
|
By:
|
/s/ Yuval
Binur
|
|
|
Name: Yuval Binur
|
|
Title: GP
|
|
|
|
By:
|
|
|
|
Name:
|
|
Title:
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
|
(Dr. Paolo Cremascoli
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power
of attorney)
|
|
|
|
|
|
|
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
|
(Guido Derjung
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power
of attorney)
|
|
|
|
|
|
|
|
|
/s/ Rolf Käse
|
|
|
(Dr. Rolf Käse)
|
|
|
|
|
|
|
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
|
(Dirk Michels
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power
of attorney)
|
|
|
|
|
|
|
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
|
(Christoph Nix
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power
of attorney)
|
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
|
(Prof. Dr. Günter Rau
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power
of attorney)
|
|
|
|
|
|
|
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
|
(Community of Heirs After
Prof. Dr. Helmut
Reul
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power
of attorney)
|
|
|
|
|
|
|
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
|
(Sebastian Schwandtner
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power
of attorney)
|
|
|
|
|
|
|
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
|
(Dr. Thorsten Sieß
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power
of attorney)
|
|
Pursuant to Item
601(b)(2) of Regulation S-K, the following schedules, appendices and
exhibits have been omitted. We will
furnish to the Commission, upon request, copies of such schedules, appendices
and exhibits.
Disclosure Schedule
ABIOMED Disclosure Schedule
Schedule I
|
Holders of Impella Outstanding
Capital Stock
|
Schedule II
|
Holders of Impella Options and
Impella Convertible Bonds
|
Appendix 6.8(b)
|
Sieß Non-Competition Agreement
|
Exhibit A
|
Wire Transfer Instructions/Allocation
of Consideration
|
Exhibit B
|
Escrow Agreement
|
Exhibit C1
|
Option Termination Agreements
|
Exhibit C2
|
Convertible Bond Termination
Agreements
|
Exhibit D1
|
Opinion of Fulbright &
Jaworski L.L.P.
|
Exhibit D2
|
Opinion of BFJM Bachem Fervers
Janßen Mehrhoff
|
Exhibit E
|
Käse Termination Agreement
|
Exhibit F
|
Registration Rights Agreement
|
Exhibit G
|
Opinion of Foley Hoag LLP
|
Exhibit 10.1
REGISTRATION RIGHTS AND STOCK RESTRICTION
AGREEMENT
This Registration Rights and Stock Restriction Agreement, dated as of
this 10th day of May, 2005 (this Agreement), by and among ABIOMED, Inc.,
a Delaware corporation (ABIOMED), the stockholders of Impella CardioSystems
AG, a company organized under the laws of Germany (the Company), listed on
Schedule I
hereto (the Stockholders) and Accelerated Technologies, Inc., as
attorney-in-fact and agent for the Stockholders (the Stockholders
Representative).
WHEREAS, pursuant to a Share Purchase Agreement dated as of April 26,
2005 by and among ABIOMED, the Stockholders Representative, the Company, and
the Stockholders (the Purchase Agreement), the parties thereto have agreed,
subject to the terms and conditions set forth therein, that ABIOMED shall
acquire all of the outstanding shares of capital stock of the Company (the Share
Purchase);
WHEREAS, pursuant to the Purchase Agreement the Stockholders will
receive shares of ABIOMED Stock (as defined below);
WHEREAS, the Stockholders desire to obtain, and in connection with and
pursuant to the Purchase Agreement, ABIOMED has agreed, to grant each of the
Stockholders, registration rights as provided herein; and
WHEREAS, the Stockholders have agreed to certain restrictions with
respect to the sale of the shares of ABIOMED Stock they receive in the Share
Purchase;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties agree as follows:
1.
Definitions of Certain Terms
. As used herein, the following terms shall
have the following meanings:
(a) ABIOMED Stock: the common stock, $.01 par value, of ABIOMED.
(b) Exchange Act: the United States Securities Exchange Act of
1934, as amended, and the rules and regulations of the SEC issued
thereunder, as they may, from time to time, be in effect.
(c) Family Member: (i) with respect
to any individual, such individuals spouse, any ancestors, siblings or
descendants (whether natural or adopted), any trust all of the beneficial
interests of which are owned by any of such individuals or by any of such
individuals together with any organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended, the estate of any such
individual, and any corporation, association, partnership or limited liability
company all of the equity interests of which are owned by those
1
above described individuals, trusts or
organizations and (ii) with respect to any trust, the owners of the
beneficial interests of such trust.
(d) Holder: any Stockholder holding Registrable Shares
and any other person or entity holding Registrable Shares to whom the
registration rights granted in this Agreement have been transferred pursuant to
Section 10 hereof.
(e) Permitted Transferee: (i) with
respect to a partnership, its partners or former partners in accordance with
their partnership interests, (b) with respect to a corporation, its
stockholders in accordance with their interest in the corporation, (c) with
respect to a limited liability company, its members or former members in
accordance with their interest in the limited liability company, (d) with
respect to an individual party, any Family Member of such party, (e) an
entity that is controlled by, controls, or is under common control with a
transferor, or (f) a party to this Agreement.
(f) Registrable Shares: the shares of ABIOMED Stock issued to the
Stockholders pursuant to the Purchase Agreement, and any other securities
issued by ABIOMED as a dividend or other distribution with respect to, or in
exchange for or in replacement of, such shares;
provided
,
however
,
Registrable Shares shall not include shares of ABIOMED Stock that (a) have
been registered under the Securities Act and disposed of pursuant to any
registration statement used to effect such registration, (b) have
otherwise been sold in the public securities markets in the United States of
America, (c) have been registered under the Securities Act on Form S-8
or any similar or successor form, or (d) may be sold by any Holder
pursuant to Rule 144 under the Securities Act without holding period and
volume limitations.
(g) SEC: the United States Securities and
Exchange Commission, or any governmental agency succeeding to its functions.
(h) Securities Act: the United States Securities Act of 1933, as
amended, and the rules and regulations of the SEC issued thereunder, as
they may, from time to time, be in effect.
Capitalized terms used, but not otherwise defined, in this Agreement
shall have the meanings given to them in the Purchase Agreement.
2.
Shelf
Registration
. ABIOMED agrees
that, as soon as reasonably practicable following the closing of the
transactions contemplated in the Transaction Documents, and in any event within
thirty (30) days thereafter, it shall cause to be filed a registration
statement (a Shelf Registration) on Form S-3 or any other
appropriate form under the Securities Act for an offering of any or all of the
Registrable Shares issued as part of and with respect to, in exchange for or in
replacement of the Closing Consideration to be made on a delayed or continuous
basis pursuant to Rule 415 thereunder or any similar rule that may be
adopted by the SEC and permitting sales in ordinary course brokerage or dealer
transactions not involving any underwritten public offering. ABIOMED will, at least three (3) business
days prior to filing the Shelf Registration Statement, furnish to the
Stockholders Representative a copy of the Shelf Registration Statement as
proposed to be filed, and allow the Stockholders Representative to review and
comment on the Shelf Registration Statement in accordance with Section 4(i).
2
Subject to Sections 5, 6 and 7
hereof, ABIOMED shall use its best efforts (a) to cause the Shelf
Registration to be declared effective by the SEC as soon as practicable, and in
no event later than ninety (90) days following the filing of such Shelf
Registration and (b) to keep the Shelf Registration continuously effective
until the earlier of (i) two (2) years (the Time Period) from the
date the Shelf Registration first becomes effective and (ii) the first
date on which no Registrable Shares covered by the Shelf Registration shall
constitute Registrable Shares (such period during which the Shelf Registration
is effective is intended to be referred to herein as the Registration Period). If and to the extent that ABIOMED chooses to
pay any Additional Consideration or Contingent Consideration in the form of
ABIOMED Stock (the Additional Shares), ABIOMED hereby agrees that, as soon as
reasonably practicable following the issuance of such Additional Shares, and in
any event within thirty (30) days thereafter, it shall cause to be filed a
registration statement on Form S-3 or any other appropriate form
under the Securities Act for an offering of any or all of such Additional
Shares so issued, to be made on a delayed or continuous basis pursuant to Rule 415
thereunder or any similar rule that may be adopted by the SEC and
permitting sales in ordinary course brokerage or dealer transactions not
involving any underwritten public offering (in each case, an Additional Shares
Registration). With respect to any
Additional Shares Registration, the parties shall have the same rights and
obligations set forth in this Agreement with respect to the Shelf Registration,
provided that any applicable time periods that are based on the Closing Date
with respect to the Shelf Registration shall be based on the date such
Additional Shares are issued with respect to any Additional Shares
Registration, and any time periods based on the date the Shelf Registration is
filed or is declared effective shall be based on the date the Additional Shares
Registration is filed or is declared effective, as the case may be.
3.
Corporation
Registration.
Subject to Section 5
hereof, if at any time after the date hereof until the date three years from
the Closing Date, ABIOMED proposes to register any of the ABIOMED Stock under
the Securities Act in connection with the public offering of such securities
for its own account or for the accounts of other stockholders, solely for cash
on a form that would also permit the registration of the Registrable Shares
(other than registrations on Form S-4 or S-8, or any successor
form thereto, or any other registration statement in connection with, or
arising out of, an acquisition, merger or private placement involving ABIOMED),
ABIOMED shall, each such time, on up to four such occasions, promptly give each
Holder written notice of such proposal.
Upon the written request of any Holder given within ten (10) days
after the mailing of any such notice by ABIOMED, ABIOMED shall use its best
efforts to cause to be registered under the Securities Act all of the
Registrable Securities that each such Holder has requested be registered. The foregoing notwithstanding, ABIOMED may,
in its discretion, withdraw any registration statement prepared in connection
with any registration referred to in this Section 3 prior to the
effectiveness thereof, provided, however, that in the event of such withdrawal,
such registration shall not be treated as a counted registration for purposes
of Section 3 hereof.
4.
Registration
Procedures
. After ABIOMED
commences the registration of the Registrable Shares pursuant to the Shelf
Registration or a registration statement in accordance with Section 3
hereof (subject to ABIOMEDs right to withdraw any such registration statement
in accordance with Section 3) ABIOMED shall as expeditiously as possible,
at its expense (
provided, however,
that Sections (d), (f), (g) and (i) shall only apply to the Shelf
Registration):
3
(a) furnish to the Stockholders
Representative such number of copies of such registration statement, each
amendment and supplement thereto (in each case including all exhibits thereto),
the prospectus included in such registration statement (including any
preliminary prospectus) and such other documents as the Stockholders
Representative may reasonably request, each in conformity with the requirements
of the Securities Act, in order to facilitate the disposition of the
Registrable Shares owned by the Holders;
(b) use its commercially reasonable best
efforts to register or qualify such Registrable Shares under such other
securities or blue sky laws of such United States jurisdictions as the
Stockholders Representative reasonably requests in writing and to do any and
all other acts and things that may be reasonably necessary or advisable to
register or qualify for sale in such United States jurisdictions the
Registrable Shares owned by the Holders;
provided
,
however
, that
ABIOMED shall not be required (i) to qualify to do business in any
jurisdiction where it is not then so qualified or (ii) to consent to
general service of process in any jurisdiction where it is not then so subject
to service of process;
(c) use its commercially reasonable best
efforts to cause all Registrable Shares covered by such registration statement
to be listed on each United States securities exchange or market, if any, on
which similar securities issued by ABIOMED are then listed,
provided
that the applicable listing requirements are satisfied;
(d) prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
contained therein as may be necessary to keep such registration statement
effective during the Registration Period, and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Shares until
such time as all Registrable Shares have been disposed of in accordance with
the intended methods of disposition by the Holder set forth in such
registration statement;
(e) as promptly as practicable after
becoming aware of such event, notify in writing each Holder or the Stockholders
Representative promptly upon the happening of any event as a result of which a
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
use its commercially reasonable best efforts to prepare and furnish to each
Holder as soon as possible, as many copies of a supplement to or an amendment
of such prospectus (or prepare and file appropriate reports under the Exchange
Act) as such Holder reasonably requests so that, as thereafter delivered to the
purchasers of such Registrable Shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(f) as soon as practicable prior to
filing any amendment or supplement to such registration statement, furnish to
the Stockholders Representative a copy of such amendment or supplement as
proposed to be filed;
4
(g) if such registration statement is
subject to review by the SEC, promptly respond to all comments and diligently
pursue reasonable resolution of any comments to the reasonable satisfaction of
the SEC;
(h) comply, and continue to comply during
the period that such registration statement is effective under the Securities
Act, in all material respects with the provisions of the Securities Act and the
Exchange Act and applicable rules and regulations of the SEC thereunder
with respect to the disposition of all securities covered by such registration
statement, and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve (12)
months, but not more than eighteen (18) months, beginning with the first full
calendar month after such registration statement is effective, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
(i) permit the Holders of Registrable
Shares being included in such registration statement and their legal counsel,
at such Holders sole cost and expense, to review and have a reasonable
opportunity to comment on such registration statement and all amendments and
supplements thereto at least three (3) business days prior to their filing
with the SEC and shall not file the Shelf Registration or any amendment or
supplement thereto should the Stockholders Representative reasonably object;
(j) provide a transfer agent and
registrar, which may be a single entity, for the Registrable Shares at all
times; and
(k) upon evidence of compliance by the
Holders with all applicable securities laws, including, without limitation,
compliance with any prospectus delivery requirements, cooperate with the
Holders of Registrable Shares being offered pursuant to such registration
statement to issue and deliver certificates (not bearing any restrictive
legends, unless required by applicable securities laws or Section 11 of
this Agreement) representing Registrable Shares to be offered pursuant to such
registration statement within five trading days after delivery of certificates
to the Companys transfer agent, with notice to the Company, and enable such
certificates to be in such denominations or amounts as the Holders may
reasonably request and registered in such names as the Holders may request.
5. Underwriting
Requirements.
(a) In connection with any offering
involving an underwriting of shares being issued by ABIOMED other than the
offering contemplated by Section 2 hereof, ABIOMED shall not be required
under Section 3 hereof to include any of the Holders Registrable Shares
in such underwriting unless such Holders accept the terms of the underwriting
as agreed upon between ABIOMED and the underwriters selected by it. If the total amount of securities that all
Holders request to be included in an underwritten offering exceeds the amount
of securities that the underwriters reasonably believe compatible with the
success of the offering based on marketing factors, ABIOMED shall only be
required to include in the offering so many of the securities of the selling
Holders as the underwriters reasonably believe will not jeopardize the success
of the offering (the securities so included to be apportioned pro rata among
the selling Holders according to the total amount of securities owned by said
selling Holders or in such other proportions as shall mutually be agreed to by
such selling Holders).
5
(b) In connection with registrations
under Section 2 hereof, ABIOMED shall have the right to designate the
managing underwriter or underwriters.
6.
Material,
Non-Public Information; Stop Order; Supplement to the Prospectus; ABIOMEDs
Insider Trading Policies.
(a) Notwithstanding the foregoing, if
ABIOMED shall determine in good faith, after consultation with its counsel,
that it is in possession of material, non-public information, the disclosure of
which would not be in the best interest of ABIOMED, ABIOMED may, upon written
notice to the Stockholders Representative, delay the effectiveness of the
Shelf Registration or any other registration of Registrable Shares for a
reasonable period of time or suspend the effectiveness of the Shelf
Registration Statement or other registration statement;
provided
, that
ABIOMED may delay the effectiveness of such Shelf Registration Statement or
other registration statement for no more than five (5) business days after
such information becomes public or is no longer material;
provided
,
further
,
that ABIOMED shall limit its delay or suspension of the effectiveness of such
registration, in the aggregate to 90 trading days in any 12-month period.
(b) ABIOMED will notify the Stockholders
Representative as promptly as practicable of (i) the issuance of any stop
order suspending the effectiveness of the Shelf Registration or other
registration statement or (ii) the receipt by ABIOMED of any notification
with respect to the suspension of the qualification of the Registrable Shares
for sale in any jurisdiction. Upon
receipt of any such notice, the Holders shall cease to offer and sell any
Registrable Shares pursuant to the Shelf Registration or other registration
statement in the jurisdiction to which such stop order or suspension
relates. The Stockholders
Representative and the Holders hereby agree that the existence and contents of
any such notice are strictly confidential and may not be disclosed to any third
party without ABIOMEDs express written consent. ABIOMED shall use all reasonable efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if any such stop order is issued or any such qualification
is suspended, to obtain as soon as possible the withdrawal or revocation
thereof, and will notify the Stockholders Representative at the earliest
practicable date of the date on which the Holders may offer and sell
Registrable Shares pursuant to the Shelf Registration or other registration
statement.
(c) ABIOMED will notify the Stockholders
Representative as promptly as practicable of the occurrence of any event or the
existence of any state of facts that ABIOMED determines in good faith, after
consultation with its counsel, is material to ABIOMED, is non-public
information and should be set forth in the prospectus used in connection with
the Shelf Registration or other registration of Registrable Shares. Immediately upon receipt of such notice, the
Holders shall cease to offer or sell any Registrable Shares pursuant to such
prospectus, cease to deliver or use such prospectus and, if so requested by
ABIOMED, return to ABIOMED, at its expense, all copies (other than permanent
file copies) of such prospectus. The
Stockholders Representative and the Holders hereby agree that the existence
and contents of any such notice are strictly confidential and may not be
disclosed to any third party without ABIOMEDs express written consent. ABIOMED will, as soon as the information
becomes available in a form such that it may be included in an amendment or
supplement to the prospectus, use all reasonable efforts to amend or supplement
such prospectus in order to set
6
forth or reflect such event or state of facts
as soon as possible;
it
being
understood
that in the event
that ABIOMED determines in good faith, after consultation with its counsel,
that the disclosure of such material non-public information would not be in the
best interest of ABIOMED, ABIOMED may delay the filing of such an amendment or
supplement to the prospectus for a period of time to extend no longer than
ninety (90) days from the occurrence of such event or existence of such state
of fact;
provided
, that ABIOMED may delay the filing of such amendment
or supplement for no more than five (5) business days after such
information becomes public or is no longer material. ABIOMED will furnish copies of such amendment
or supplement to the prospectus to the Stockholders Representative. In the event Holders are prevented from
selling Registrable Shares through the Shelf Registration as a result of this Section 6(c),
then the Time Period shall be extended by the number of days that such Holders
are prevented from making such sales as a result of this Section 6(c).
(d) Each Holder agrees, if and for so
long as he or she is an employee of ABIOMED or any of ABIOMEDs subsidiaries,
to comply with the ABIOMEDs standard policy concerning the purchase and sale
of securities of ABIOMED applicable to similarly situated employees.
7.
Information Concerning the Sellers.
(a) It shall be a condition precedent to
the obligations of ABIOMED to take any actions pursuant to Sections 2, 3, 4 and
6 hereof that each Holder (i) conform to all applicable requirements of the
Securities Act and the Exchange Act with respect to the offering and sale of
securities, (ii) advise each underwriter, broker or dealer through which
any of such Registrable Shares are offered that such Registrable Shares are
part of a distribution that is subject to the prospectus delivery requirements
of the Securities Act, (iii) furnish to ABIOMED in writing such
information regarding themselves, the Registrable Shares held by them and the
intended method of disposition of such shares as ABIOMED shall reasonably
request and as shall be required under applicable securities laws in connection
with the action to be taken by ABIOMED, including the preparation of (A) the
prospectus (or any amendment or supplement thereto) with respect to such
offering and (B) any qualification of such Registrable Shares under state
securities or blue sky laws, and (iv) promptly notify ABIOMED of the
occurrence, from the date on which such information or documents are furnished
to the date of the closing for the sale of such Registrable Shares, of any
event relating to such Holder that is required under the Securities Act to be
set forth in the prospectus (or any amendment or supplement thereto).
(b) At the end of the Registration Period
the Holders shall discontinue sales of Registrable Shares pursuant to the Shelf
Registration after ABIOMED has given notice to the Stockholders Representative
of its intention to remove from registration the securities covered by the
Registration Statement which remain unsold, and the Stockholders
Representative shall notify ABIOMED immediately upon receipt of such notice
from ABIOMED of the number of shares of the Holders that are registered but
remain unsold.
8.
Expenses
of Registration
. ABIOMED
shall pay all expenses incident to its performance of or compliance with this
Agreement and registration of Registrable Shares in connection herewith,
including (a) all SEC, stock exchange or market and National Association
of Securities Dealers, Inc. registration and filing fees, (b) all
fees and expenses incurred in
7
complying with securities or blue
sky laws, (c) all expenses incurred in connection with the preparation,
printing and distribution of the registration statement and prospectus and any
other supplement or amendment thereto and the mailing and delivery of copies
thereof to the Holders, including all printing, messenger and delivery expenses
and (d) all fees and disbursements of ABIOMEDs independent public
accountants and counsel (all of such expenses herein referred to as Registration
Expenses). The Registration Expenses
shall not include any sales or underwriting discounts, commissions or fees
attributable to the sale of the Registrable Shares or the fees and expenses of
counsel to the Holders, which shall be borne by the Holders.
9.
Indemnification and Contribution.
(a) In
the event that Registrable Shares are included in a registration statement
pursuant to the terms of this Agreement, ABIOMED agrees to indemnify and hold
harmless, to the extent permitted by law and subject to the terms of this
Agreement, each Holder, its directors, officers, partners, and each person, if
any, who controls such Holder (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities and expenses (including
reasonable attorneys fees and disbursements), joint or several, arising out of
or based upon any untrue or alleged untrue statement of a material fact
contained in such registration statement (or any amendment thereto) or any
preliminary, final or supplemental prospectus contained therein (or any
amendment or supplement thereto) or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements made therein in the light of the circumstances under which they were
made not misleading, and the Company shall reimburse the Holder, and each such
director, officer, partner, underwriter and controlling person for any legal or
any other expenses reasonably incurred by them in connection with
investigating, defending or settling any such loss, claim, damage, liability or
expense and any related action or proceeding;
provided
,
however
,
that ABIOMED shall not be liable to any Holder or any person who controls such
Holder (within the meaning of the Securities Act) to the extent that any such
loss, claim, damage, liability or expense arises out of, or is based upon any
such untrue or alleged untrue statement, or any such omission, if such
statement or omission shall have been made in reliance upon and in conformity
with information relating to such Holder or person furnished to ABIOMED in
writing by or on behalf of any such Holder or person for use in the preparation
of such registration statement (or any amendment thereto) or any prospectus
contained therein (or any amendment or supplement thereto).
(b) In connection with any such
registration statement, each Holder agrees to indemnify, to the extent
permitted by law and subject to the terms of this Agreement, ABIOMED, its
directors, officers, employees and agents and each person who controls ABIOMED
(collectively, the ABIOMED Group) (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities and expenses (including
reasonable attorneys fees and disbursements; collectively, all such amounts
are hereinafter referred to as ABIOMED Claims) arising out of or based upon
any untrue or alleged untrue statement of a material fact contained in any such
registration statement (or any amendment thereto) or any prospectus contained
therein (or any amendment or supplement thereto) or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements made therein in the light of the circumstances
under which they were made not misleading, to the extent that such untrue
statement or omission was made in reliance upon and in conformity with
information furnished to ABIOMED in writing by or on behalf of such Holder for
use in the
8
preparation of such registration statement
(or any amendment thereto) or any prospectus contained therein (or any
amendment or supplement thereto).
(c) Each party entitled to
indemnification under this Section 9 shall give notice to the party
required to provide indemnification promptly after such indemnified party has
actual knowledge of any claim as to which indemnity may be sought, and shall
permit the indemnifying party to assume the defense of any such claim or any
litigation resulting therefrom;
provided
that counsel for the
indemnifying party, who shall conduct the defense of such claim or litigation,
shall be approved by the indemnified party (whose approval shall not be
unreasonably withheld or delayed); and
provided
,
further
, that
the delay or failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations under this Section 9,
except to the extent that the indemnifying party is actually prejudicial by
such delay or failure. The indemnified
party may participate in such defense at such partys expense;
provided
,
however
, that the indemnifying party shall pay such expense if the
indemnified party shall have reasonably concluded that there may be a conflict
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such claim or litigation resulting therefrom or
the indemnifying party fails to defend such claim in a reasonably diligent
manner. No indemnified party shall
consent to entry of any judgment or settle any claim or litigation without the
prior written consent of the indemnifying party.
(d) If the indemnification provided for
in this Section 9 from the indemnifying party is unavailable to an
indemnified party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein as a result of a binding judicial
determination that such indemnification may not be enforced in such case
notwithstanding this Agreement, the indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expense, as well
as any other relevant equitable considerations.
The relative fault of such indemnifying party and indemnified parties
shall be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of material fact or
omission or alleged omission to state a material fact, has been made by, or
relates to information supplied by, such indemnifying party or indemnified
parties, and the parties relative intent, knowledge, access to information and
opportunity to correct or prevent such action.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
10.
Transfer
of Registration Rights
. The
registration rights of any Holder (and of any Permitted Transferee of any
Holder or its Permitted Transferees) under this Agreement with respect to any
Registrable Shares may be transferred to any Permitted Transferee as a gift,
partnership distribution or other non-sale related transfer without
consideration (a Permitted Transfer); provided that (a) ABIOMED is given
written notice by the Holder at the time of such Permitted Transfer stating the
name and address of the Permitted Transferee and identifying the Registrable Shares
with respect to which the rights under this Agreement are being assigned, (b) such
Permitted Transferee executes and delivers such agreements as ABIOMED may
reasonably require in order to confirm that such Permitted Transferee agrees to
be bound by this Agreement
9
and the Purchase Agreement, and
(c) notwithstanding anything to the contrary contained in this Agreement,
ABIOMED shall not be obligated to file any post-effective amendments or
prospectus supplements to any outstanding registration statements contemplated
by this Agreement for the purposes of updating the selling stockholders listed
in such registration statements to include the Permitted Transferees other than
on a quarterly basis in connection with the timing of its filing of annual
reports on Form 10-K and quarterly reports on Form 10-Q
and such Permitted Transferees shall not be allowed to sell any shares covered
by the Permitted Transfer under any such registration statement until such time
as such post-effective amendments or prospectus supplements are filed unless it
is determined, to the satisfaction of ABIOMEDs counsel, that no such
post-effective amendments or prospectus supplements are required under
applicable securities laws.
11.
Restrictions
on the Sale of Registrable Shares.
Each
Holder covenants and agrees that notwithstanding any other provision in this
Agreement:
(a) such Holder shall not sell, transfer,
hedge, pledge, hypothecate, assign or otherwise convey any interest in
(collectively, sell) any Closing Consideration for a period of six (6) months
from the date of the Closing under the Purchase Agreement, at which point such
restrictions shall lapse as to fifty percent (50%) of such Holders Closing
Consideration;
(b) the restrictions set forth in Section 11(a) shall
lapse as to one hundred percent (100%) of the Closing Consideration twelve (12)
months after the date of the Closing under the Purchase Agreement.
Notwithstanding the foregoing, such Holder shall not sell any
Registrable Shares unless they are registered under the Securities Act or
unless an exemption from the registration requirements thereof is
available. Until the date such
Registrable Shares are eligible to be sold under this Section 11, in
addition to all other legends required by this Agreement or deemed appropriate
by ABIOMED, the certificates representing such shares shall bear a legend
substantially in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON TRANSFER PURSUANT TO A REGISTRATION RIGHTS AND STOCK RESTRICTION AGREEMENT
DATED AS OF MAY 10, 2005, A COPY OF WHICH WILL BE FURNISHED TO THE HOLDER
HEREOF UPON REQUEST.
12.
Investment
Representations.
(a) Each Stockholder represents and
warrants to ABIOMED as follows:
(i) Such Stockholder understands that
the shares of ABIOMED Stock to be received by such Stockholder pursuant to the
Purchase Agreement will not have been registered or qualified under the
Securities Act or under the securities laws of any jurisdiction, and other than
pursuant to its obligations under this Agreement, ABIOMED is not, nor will it
be, under any obligation to register such shares of ABIOMED Stock under the
Securities Act or the Securities laws of any jurisdiction. Such Stockholder further understands that
such shares of
10
ABIOMED Stock will constitute restricted
securities within the meaning of Rule 144 promulgated under the
Securities Act and that, as such, such shares of ABIOMED Stock must be held
indefinitely unless they are subsequently registered under the Securities Act
or unless an exemption from the registration requirements thereof is available.
(ii) Such Stockholder is acquiring the
shares of ABIOMED Stock to be received by it pursuant to the Purchase Agreement
for its own account for investment and not for, with a view to or in connection
with any resale or distribution thereof in a manner that violates the
Securities Act or any other applicable securities laws.
(iii) Such Stockholder by reason of its
business and financial experience, and the business and financial experience of
those persons retained by such Stockholder to advise it with respect to its
investment in the shares of ABIOMED Stock to be received by it hereunder, has
such knowledge, sophistication and experience in business and financial matters
as to be capable of evaluating the merits and risks of the prospective
investment, and is able to bear the economic risk of such investment and is
able to afford a complete loss of such investment. Such Stockholder acknowledges and understands
that ABIOMEDs filings with the SEC are publicly available for review via the
SECs EDGAR website. Such Stockholder is
an accredited investor within the meaning of Rule 501 promulgated under
the Securities Act.
(b) Except as set forth in
Schedule I
,
each Stockholder whose address listed on
Schedule I
is located
outside the United States further represents and warrants to ABIOMED as
follows:
(i) If such Stockholder is an
individual, the address for such Stockholder set forth on
Schedule I
is the true jurisdiction of citizenship, residence and domicile of such
Stockholder, and such Stockholder has no present intention of becoming a
citizen, resident or domiciliary of any other state or jurisdiction. If a corporation, trust, partnership or other
entity, such Stockholder was organized under the laws of the jurisdiction of
its principal place of business and has its principal place of business at the
address set forth for such Stockholder on
Schedule I
.
(ii) Such Stockholder, if an individual,
was present in the United States during the current year and the two preceding
calendar years for less than 183 days in each year.
(iii) No offer of the ABIOMED Stock was made
to such Stockholder in the United States.
(iv) At the time such Stockholder executed
this Agreement, such Stockholder was located outside the United States.
(v) Such Stockholder is not a U.S. Person
and is not acquiring ABIOMED Stock hereunder for the account or benefit of any
U.S. Person.
(vi) Such Stockholder agrees to resell the
ABIOMED Stock to be acquired hereunder only in accordance with the provisions
of Regulation S of the Securities Act,
11
pursuant to registration under the Securities
Act, or pursuant to an available exemption from registration under the
Securities Act. The undersigned also
agrees not to engage in hedging transactions with regard to such ABIOMED Stock.
13.
Stockholders
Representative.
(a) In order to administer efficiently
the registration of the Registrable Shares and the defense and/or settlement of
any ABIOMED Claims for which the Holders may be required to indemnify the
ABIOMED Group pursuant to Section 9 hereof, the Holders hereby designate
the Stockholders Representative as their representative and agent under this
Agreement, and the Stockholders Representative hereby accepts such
appointment.
(b) The Holders hereby authorize and
appoint the Stockholders Representative to be their exclusive representative
and attorney in fact with respect to all matters arising out of this Agreement
and the Holders shall not make any independent agreement or arrangement with
ABIOMED with respect to any such matter.
In furtherance of the foregoing, the Stockholders Representative shall
be authorized, on behalf of the Holder, to (i) take any action permitted
or required to be taken by any Holder pursuant to this Agreement; (ii) take
all action necessary in connection with the defense and/or settlement of any
ABIOMED Claims for which the Holders may be required to indemnify members of
the ABIOMED Group pursuant to Section 9 hereof, (iii) give and
receive all notices required to be given under this Agreement, and (iv) take
any and all additional action as is contemplated to be taken by or on behalf of
the Holders by the terms of this Agreement.
(c) In the event that the Stockholders
Representative dies, becomes unable to perform his or its responsibilities
hereunder or resigns or is removed from such position (in accordance with the
provisions of Section 2.8(c) of the Purchase Agreement), a successor
Stockholders Representative shall be appointed pursuant to the terms of Section 2.8(c) of
the Purchase Agreement.
(d) All decisions and actions by the
Stockholders Representative, including actions under this Agreement and the
defense or settlement of any ABIOMED Claims for which the Holders may be
required to indemnify members of the ABIOMED Group pursuant to Section 9
hereof, shall be binding upon all of the Holders, and no Holder shall have the
right to object, dissent, protest or otherwise contest the same.
(e) By their adoption of this Agreement,
the Holders agree that:
(i) ABIOMED shall be able to rely
conclusively on the instructions and decisions of the Holders Representative
relating to the Shelf Registration or any other registration of Registrable
Shares or to the settlement of any ABIOMED Claims for indemnification by
members of the ABIOMED Group pursuant to Section 9 hereof or any other
actions permitted or required to be taken by the Stockholders Representative
hereunder, and no Person shall have any cause of action against any member of
the ABIOMED Group for any action taken by any member of the ABIOMED Group in
reliance upon the instructions or decisions of the Stockholders
Representative;
12
(ii) all actions, decisions and
instructions of the Stockholders Representative shall be conclusive and
binding upon all of the Holders and no Holder shall have any cause of action
against the Stockholders Representative for any action taken or not taken,
decision made or instruction given by the Stockholders Representative arising
out of or in connection with the acceptance or administration of his or its
duties hereunder, except for fraud or willful breach of this Agreement by the
Stockholders Representative;
(iii) the provisions of this Section 13
are independent and severable, are irrevocable and coupled with an interest and
shall be enforceable notwithstanding any rights or remedies that any Holder may
have in connection with the transactions contemplated by this Agreement; and
(iv) the provisions of this Section 13
shall be binding upon the executors, heirs, legal representatives, successors
and assigns of each Holder, and any references in this Agreement to a Holder or
the Holders shall mean and include the successors to the Stockholders rights
hereunder, whether pursuant to testamentary disposition, the laws of descent
and distribution or otherwise.
(f) Each Holder consents to the
appointment of the Stockholders Representative pursuant to Section 2.8 of
the Purchase Agreement and agrees to be bound by the provisions of Section 2.8
of the Purchase Agreement (the provisions of which are hereby incorporated by
reference
mutatis
mutandis
).
(g) ABIOMED shall have no liability for
any fees or expenses of the Stockholder Representative under this Agreement.
14.
Compliance
with Rule 144
. ABIOMED
agrees to (i) satisfy the conditions of Rule 144(c) under the
Securities Act with respect to current public information about ABIOMED; and (ii) use
its best efforts to file with the SEC in a timely manner all reports and other
documents required to be filed by ABIOMED under the Exchange Act, provided,
however, that ABIOMEDs obligations under this Section shall terminate
upon the earlier of (a) four years following the Closing Date, (b) the
date the Impella Stockholders no longer hold shares of ABIOMED Stock issued to
them pursuant to the Purchase Agreement, and (c) such time as ABIOMED no
longer has a class of shares registered under the Exchange Act.
15.
Amendments
and Supplements
. This
Agreement may not be amended, modified or supplemented by the parties hereto in
any manner, except by an instrument in writing signed by ABIOMED and the
Stockholders Representative.
16.
No
Waiver
. The terms and
conditions of this Agreement may be waived only by a written instrument signed
by (a) the Stockholders Representative in the case where a Stockholder or
the Stockholders Representative is waiving compliance and (b) by ABIOMED
in the case where ABIOMED is waiving compliance. The failure of any party hereto to enforce at
any time any of the provisions of this Agreement shall in no way be construed
to be a waiver of any such provision, nor in any way to affect the validity of
this Agreement or any part hereof or the right of such party thereafter to
enforce each and every such provision.
No waiver of any breach of or non-compliance with this Agreement shall
be held to be a waiver of any other or
13
subsequent breach or
non-compliance. The rights and remedies
herein provided are cumulative and are not exclusive of any rights or remedies
that any party may otherwise have at law or in equity.
17.
Governing
Law
. This Agreement shall be
governed by, and construed and enforced in accordance with, the substantive
laws of the State of Delaware, without regard to its principles of conflicts of
laws.
18.
Notice
. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered by hand,
sent by facsimile transmission with confirmation of receipt, or sent via a
reputable overnight courier service with confirmation of receipt requested to
the parties at the following addresses (or at such other address for a party as
shall be specified by like notice), and shall be deemed given on the date on
which delivered by hand or otherwise on the date of receipt as confirmed:
To ABIOMED:
ABIOMED, Inc.
22 Cherry Hill Drive
Danvers, MA 01923
USA
Attention: President
Facsimile:
(01) 978-777-8411
With a copy to:
Foley Hoag
LLP
155 Seaport Boulevard
Boston, Massachusetts 02210
USA
Attention: Peter M. Rosenblum, Esq.
Facsimile: (01) 617 832-7000
To any Holder
:
c/o Accelerated Technologies, Inc., as
Stockholders Representative
401 Hackensack Avenue
Hackensack, NJ 07601
USA
Attention: Richard Geoffrion
Facsimile: (201) 487-2005
With a copy to:
Fulbright & Jaworski, L.L.P.
666 Fifth Avenue
New York, New York 10103
14
Attn: Joseph F. Daniels, Esq.
Facsimile: (212) 318-3400
19.
Construction
of Agreement
. A reference to
a Section shall mean a Section in this Agreement unless otherwise expressly
stated. The titles and headings herein
are for reference purposes only and shall not in any manner limit the
construction of this Agreement which shall be considered as a whole. The words include, includes and including
when used herein shall be deemed in each case to be followed by the words without
limitation.
20.
Entire
Agreement, Assignability, etc.
.
This Agreement and the Purchase Agreement and the documents and other
agreements among the parties hereto and thereto as contemplated by or referred
to herein or therein constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all other prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. This Agreement is not intended to confer upon
any person other than the parties hereto any rights or remedies hereunder,
except as otherwise expressly provided herein and shall not be assignable by
the Stockholders by operation of law or otherwise, except as provided in Section 10
hereof.
21.
Validity
. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, each of which shall remain in full force
and effect.
22.
Counterparts
. This Agreement may be executed in one or more
counterparts, all of which together shall constitute one and the same
Agreement.
* *
* * *
15
IN WITNESS WHEREOF, the parties have caused
this Registration Rights and Stock Restriction Agreement to be executed as an agreement
under seal as of the date first written above.
|
ABIOMED, INC.
|
|
|
|
|
|
/s/ Javier
Jimenez
|
|
Name: Javier
Jimenez
|
|
Title: VP
Operations
|
|
|
|
|
|
STOCKHOLDERS REPRESENTATIVE
|
|
|
|
ACCELERATED TECHNOLOGIES, INC.
|
|
|
|
|
|
/s/ John P.
Brancaccio
|
|
Name: John
P. Brancaccio
|
|
Title: CFO
|
[Signature Page to Registration Rights Agreement]
|
STOCKHOLDERS
|
|
|
|
|
|
|
|
|
ACCELERATED
TECHNOLOGIES, INC.
|
|
|
|
|
|
|
|
|
By:
|
/s/ John P.
Brancaccio
|
|
|
|
Name: John
P. Brancaccio
|
|
|
|
Title: CFO
|
|
|
|
|
|
|
|
|
MRNA FUND II
L.P.
|
|
|
By: OBP
Management IV L.P., its General Partner
|
|
|
|
|
|
|
|
|
By:
|
/s/ Jeffrey
T. Barnes
|
|
|
|
Name:
Jeffrey T. Barnes
|
|
|
|
Title:
General Partner
|
|
|
|
|
|
|
|
|
OXFORD
BIOSCIENCE PARTNERS IV L.P.
|
|
|
By: OBP
Management IV L.P., its General Partner
|
|
|
|
|
|
|
|
|
By:
|
/s/ Jeffrey
T. Barnes
|
|
|
|
Name:
Jeffrey T. Barnes
|
|
|
|
Title:
General Partner
|
|
GIZA
EXECUTIVE VENTURE FUND III L.P.
|
|
|
|
By:
|
/s/ Avi
Molcho
|
|
|
Name: Avi
Molcho
|
|
Title:
Managing Director
|
|
|
|
By:
|
/s/ Zvi
Schecter
|
|
|
Name: Zvi
Schechter
|
|
Title:
Managing Director
|
|
|
|
|
|
GIZA
ALPINVEST VENTURE FUND III L.P.
|
|
|
|
By:
|
/s/ Avi
Molcho
|
|
|
Name: Avi
Molcho
|
|
Title:
Managing Director
|
|
|
|
By:
|
/s/ Zvi
Schecter
|
|
|
Name: Zvi
Schechter
|
|
Title:
Managing Director
|
|
|
|
|
|
GIZA GE
VENTURE FUND III L.P.
|
|
|
|
By:
|
/s/ Avi
Molcho
|
|
|
Name: Avi
Molcho
|
|
Title:
Managing Director
|
|
|
|
By:
|
/s/ Zvi
Schecter
|
|
|
Name: Zvi
Schechter
|
|
Title:
Managing Director
|
|
|
|
|
|
|
|
GIZA GMULOT
VENTURE FUND III L.P.
|
|
|
|
|
|
By:
|
/s/ Avi
Molcho
|
|
|
Name: Avi
Molcho
|
|
Title:
Managing Director
|
|
|
|
By:
|
/s/ Zvi
Schecter
|
|
|
Name: Zvi
Schechter
|
|
Title:
Managing Director
|
|
|
|
|
|
GIZA VENTURE
FUND III L.P.
|
|
|
|
|
|
By:
|
/s/ Avi
Molcho
|
|
|
Name: Avi
Molcho
|
|
Title:
Managing Director
|
|
|
|
By:
|
/s/ Zvi
Schecter
|
|
|
Name: Zvi
Schechter
|
|
Title:
Managing Director
|
|
|
|
|
|
|
/s/ Donald S. Baim
|
|
|
Dr. Donald
S. Baim
|
|
|
|
|
|
|
|
|
/s/ Daniel Burkhoff
|
|
|
Dr. Daniel
Burkhoff
|
|
|
|
|
|
|
|
|
/s/ Peter J. Fitzgerald
|
|
|
Dr. Peter
J. Fitzgerald
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Richard Geoffrion
|
|
|
Richard
Geoffrion
|
|
|
|
|
|
|
|
|
/s/ Martin B. Leon
|
|
|
Dr. Martin
B. Leon
|
|
|
|
|
|
|
|
|
/s/ Mark Maguire
|
|
|
Mark Maguire
|
|
|
|
|
|
|
|
|
/s/ Arthur Pergament
|
|
|
Arthur
Pergament
|
|
|
|
|
|
|
|
|
/s/ Paul Spence
|
|
|
Dr. Paul
Spence
|
|
|
|
|
|
|
|
|
/s/ Paul S. Teirstein
|
|
|
Dr. Paul
S. Teirstein
|
|
|
|
|
|
|
|
|
/s/ Eberhard Grube
|
|
|
Dr. Eberhard
Grube
|
|
|
ABN AMRO
PARTICIPATIES B.V.
|
|
|
|
By:
|
/s/ M. A.
van Osis
|
|
|
Name: M. A.
van Osis
|
|
Director
|
|
|
|
By:
|
|
|
|
Name: LPA
Bergstein
|
|
|
Director
|
|
MEDICA II
INVESTMENTS (INTERNATIONAL) L.P.
|
|
|
|
|
|
By:
|
/s/ Yuval Binur
|
|
|
Name: Yuval
Binur
|
|
Title: GP
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
Title:
|
|
|
|
|
|
MEDICA II
INVESTMENTS (P.F) (ISRAEL) L.P.
|
|
|
|
|
|
By:
|
/s/ Yuval Binur
|
|
|
Name: Yuval
Binur
|
|
Title: GP
|
|
|
|
By:
|
|
|
|
Name:
|
|
Title:
|
|
|
|
|
|
MEDICA II
INVESTMENTS (ISRAEL) L.P.
|
|
|
|
|
|
By:
|
/s/ Yuval Binur
|
|
|
Name: Yuval
Binur
|
|
Title: GP
|
|
|
|
By:
|
|
|
|
Name:
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
/s/ Volker Trenz /s/ Rolf
Käse
|
|
|
(Dr. Paolo Cremascoli
|
|
|
represented by
|
|
|
Volker
Trenz and Dr. Rolf Käse
|
|
|
on the basis of their power of attorney)
|
|
|
|
|
|
|
|
|
/s/ Volker Trenz /s/ Rolf
Käse
|
|
|
(Guido Derjung
|
|
|
represented by
|
|
|
Volker
Trenz and Dr. Rolf Käse
|
|
|
on the basis of their power of attorney)
|
|
|
|
|
|
|
|
|
/s/ Rolf Käse
|
|
|
(Dr. Rolf Käse)
|
|
|
|
|
|
|
|
|
/s/ Volker Trenz /s/ Rolf
Käse
|
|
|
(Dirk Michels
|
|
|
represented by
|
|
|
Volker
Trenz and Dr. Rolf Käse
|
|
|
on the basis of their power of attorney)
|
|
|
|
|
|
|
|
|
/s/ Volker Trenz /s/ Rolf
Käse
|
|
|
(Christoph Nix
|
|
|
represented by
|
|
|
Volker
Trenz and Dr. Rolf Käse
|
|
|
on the basis of their power of attorney)
|
|
|
|
|
|
/s/ Volker Trenz /s/ Rolf
Käse
|
|
|
(Prof. Dr. Günter Rau
|
|
|
represented by
|
|
|
Volker
Trenz and Dr. Rolf Käse
|
|
|
on the basis of their power of attorney)
|
|
|
|
|
|
|
|
|
/s/ Volker Trenz /s/ Rolf
Käse
|
|
|
(Community of Heirs After
|
|
|
Prof. Dr. Helmut Reul
|
|
|
represented by
|
|
|
Volker
Trenz and Dr. Rolf Käse
|
|
|
on the basis of their power of attorney)
|
|
|
|
|
|
|
|
|
/s/ Volker Trenz /s/ Rolf
Käse
|
|
|
(Sebastian Schwandtner
|
|
|
represented by
|
|
|
Volker
Trenz and Dr. Rolf Käse
|
|
|
on the basis of their power of attorney)
|
|
|
|
|
|
|
|
|
/s/ Volker Trenz /s/ Rolf
Käse
|
|
|
(Dr. Thorsten Sieß
|
|
|
represented by
|
|
|
Volker
Trenz and Dr. Rolf Käse
|
|
|
on the basis of their power of attorney)
|
|
Exhibit 10.2
ESCROW AGREEMENT
This Escrow Agreement, dated as of this 10th day of May, 2005 (this Agreement),
by and among (i) ABIOMED, Inc., a Delaware corporation (ABIOMED), (ii) the
persons named in
Exhibit A
attached hereto (collectively, the Stockholders),
who are all of the Stockholders of Impella CardioSystems AG, a German company (Impella),
(iii) Accelerated Technologies, Inc., in its capacity as agent for the Stockholders
(the Stockholders Representative) and (iv) American Stock Transfer &
Trust Company, a New York corporation, as escrow agent (the Escrow Agent).
WHEREAS, pursuant to a Share Purchase Agreement by and among ABIOMED, Impella, the Stockholders and the Stockholders
Representative dated as of April 26, 2005 (the Purchase Agreement), the
parties thereto have agreed, subject to the terms and conditions set forth
therein, that, among other things, ABIOMED will acquire Impella in exchange for
shares of ABIOMED Common Stock (as such term is defined in the Purchase
Agreement);
WHEREAS, pursuant and subject to the Purchase Agreement, the Stockholders
have agreed to indemnify ABIOMED for certain claims that ABIOMED may incur;
WHEREAS the
Stockholders have appointed the Stockholders Representative and the
Stockholders Representative has accepted the appointment to act on behalf of
such parties for purposes of this Agreement and as set forth in the Purchase
Agreement; and
WHEREAS, pursuant to the Purchase Agreement, ABIOMED is transferring to the Escrow Agent as
security for potential claims for indemnification by ABIOMED pursuant to the terms
of the Purchase Agreement, an aggregate of 210,000 shares of ABIOMED Common
Stock (which amount represents a portion of the total number of shares of ABIOMED
Common Stock to be paid to the Stockholders at the Closing pursuant to the
terms of the Purchase Agreement (rounded up to the nearest whole number of
shares of ABIOMED Common Stock for each Stockholder)), to be held by the Escrow
Agent upon the terms and conditions set forth herein. (For purposes of this Agreement, the term Escrow
Fund shall refer to the shares of ABIOMED Common Stock held by the Escrow
Agent from time to time pursuant to this Agreement);
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1.
Establishment of Escrow
.
(a) ABIOMED and the Stockholders hereby appoint the Escrow
Agent to serve as agent for the purpose of holding and distributing the Escrow
Fund upon the terms and conditions
herein set forth, and the Escrow Agent accepts such appointment subject
to the terms and conditions hereof. In
accordance with Section 2.4(b) of the Purchase Agreement, at the Closing
(as defined in the Purchase Agreement), ABIOMED shall deposit with the Escrow
Agent 210,000 shares of ABIOMED Common Stock (collectively, the Deposit),
which shares represent a part of the shares of ABIOMED Common Stock issuable
pursuant to the Purchase Agreement. The
Deposit shall consist of one certificate registered in the name of the Escrow
Agent. The shares of ABIOMED Common
Stock contained in the Deposit shall be credited to a book entry account for
each such Stockholder maintained by the Escrow Agent (an Account), with each
Stockholder being credited with the number of shares of ABIOMED Common Stock
set forth opposite such Stockholders name on
Exhibit A
hereto.
(b) If at any time during the term of this Agreement, a
stock dividend, reclassification, readjustment or other change is declared or
made in the capital structure of ABIOMED, certificates evidencing all new,
substituted or additional shares, or other securities, issued by reason of any
such change shall be deposited with the Escrow Agent and shall for all purposes
constitute part of the Escrow Fund hereunder and be deemed shares of ABIOMED
Common Stock as such term is used herein.
2.
Disbursement
of the Escrow Fund
.
Except as otherwise provided in this Section 2, the Escrow Fund
shall remain in existence from the Closing until the eighteen (18) month
anniversary of the date of this Agreement (the Termination Date). The Escrow Agent shall continue to hold the
Escrow Fund in its possession until authorized hereunder to make distributions
from the Escrow Fund. The Escrow Agent
shall distribute the Escrow Fund as follows:
(a) If, at any time on or prior to the Termination Date,
ABIOMED wishes to make a claim (each, an Indemnification Claim) against the
Escrow Fund for which it reasonably believes it is entitled to recovery under Article IX
of the Purchase Agreement, ABIOMED shall execute and deliver to the Escrow
Agent (with a copy being sent simultaneously to the Stockholders
Representative pursuant to Article IX of the Purchase Agreement) a written
notice asserting a claim for indemnification against the Stockholders in
accordance with Article IX of the Purchase Agreement (a Claim Notice;
and the right of indemnity asserted in a Claim Notice being hereinafter
referred to as a Claim) stating: (i) the dollar amount of the Claim and the
number of shares of ABIOMED Common Stock held in the Escrow Fund to be applied
to satisfy such Claim, determined after giving effect to the provisions of Article IX
of the Purchase Agreement (including the method of calculating the value of a
share of ABIOMED Common Stock) (the Claimed Amount), (ii) the Claim meets the
applicable threshold requirement of Section 9.5 of the Purchase Agreement
(the Threshold Requirement) and (iii) the nature and description of such
Claim in reasonable detail (to the extent known); provided, however, the
following shall apply:
(i)
In
order to be effective hereunder, a Claim Notice delivered to the Escrow Agent
pursuant to this Section 2(a) must (A) set forth the nature and
description of such Claim (to the extent known), the Claimed Amount (and the
application of the Threshold Requirement to the
2
determination thereof), and the basis for ABIOMEDs request for
indemnification and (B) be received by the Escrow Agent and the Stockholders
Representative on or prior to the close of business on the Termination Date;
(ii)
If,
following Escrow Agents receipt of any Claim Notice by ABIOMED pursuant to
this Section 2(a), the Escrow Agent either (A) receives written notification
from the Stockholders Representative that the Claim and the Claimed Amount is
not disputed or (B) does not receive a notice from the Stockholders
Representative within twenty (20) days of receipt of the Claim Notice
indicating that a dispute exists with respect to the Claim, then the Escrow
Agent shall, within five (5) days after the earlier of the receipt of the
notice referred to in clause (A) of this paragraph or following the expiration
of the twenty (20) day period referred to in clause (B) of this paragraph,
deliver to ABIOMED from the Escrow Fund, through instruments of transfer
reasonably satisfactory to ABIOMED, certificates representing a number of
shares of ABIOMED Common Stock equal to the Claimed Amount but not in excess of
the Escrow Fund, or, if the Claimed Amount shall be greater than the remaining
portion of the Escrow Fund, the balance of the Escrow Fund; and
(iii)
If,
within twenty (20) days of the Escrow Agents receipt of a Claim Notice, the
Escrow Agent receives written notification from the Stockholders
Representative that (A) such Claim is disputed or (B) that such Claim is only
partially disputed and that ABIOMED is only entitled to receive part, but not
all, of the Claimed Amount (the Agreed Amount), then the Escrow Agent shall
within five (5) days after the receipt of the notice referred to in clause (B)
of this paragraph, deliver to ABIOMED from the Escrow Fund through instruments
of transfer reasonably satisfactory to ABIOMED certificates representing a
number of shares of ABIOMED Common Stock equal to the Agreed Amount, but not in
excess of the Escrow Fund, or, if the Agreed Amount shall be greater than the
remaining portion of the Escrow Fund, the balance of the Escrow Fund.
(iv)
If,
within twenty (20) days of the Escrow Agents receipt of a Claim Notice, the
Escrow Agent receives written notification from the Stockholders
Representative that it disputes all or any portion of a Claim, such dispute
shall be resolved pursuant to Section 3 hereof. Within five (5) days after the Stockholders
Representative and ABIOMED resolve a dispute with respect to the Claimed Amount
in the form of a memorandum pursuant to Section 3(a), a settlement
agreement pursuant to Section 3(b), or by obtaining a final order of
Arbitrators pursuant to Section 3(b), and such memorandum, settlement
agreement or order provides that ABIOMED is entitled to be indemnified for any
portion of the Claimed Amount, the Escrow Agent shall deliver to ABIOMED from
the Escrow Fund through instruments of transfer reasonably satisfactory to
ABIOMED certificates representing a number of shares of ABIOMED Common Stock
equal to the such portion of the Claimed Amount, but not in excess of the
Escrow Fund, or, if such portion of the Claimed Amount shall be greater than
the remaining portion of the Escrow Fund, the balance of the Escrow Fund.
(b) Any distribution of shares of ABIOMED Common Stock to
satisfy an ABIOMED Claim pursuant to Section 2(a) hereof shall be deducted
from the respective Accounts of each
3
Stockholder in proportion to each Stockholders pro rata portion set
forth on
Exhibit A
hereto (Pro Rata Portion), provided, however, that,
if the Account of a Stockholder does not contain shares of ABIOMED Common Stock
sufficient to pay such Stockholders Pro Rata Portion of such ABIOMED Claim (as
a result of a Claim based on a breach of a representation set forth in Section 4.1
of the Purchase Agreement) and other shares of ABIOMED Common Stock remain in
the Escrow Fund, then such other shares of ABIOMED Common Stock shall be deducted
from the respective Accounts of the other Stockholders to satisfy such ABIOMED
Claim in proportion to the amount that each such other Stockholders Pro Rata
Portion bears to the total Pro Rata Portions of all such other
Stockholders. Notwithstanding the
foregoing, in the event of a Claim based on a breach of a representation set
forth in Section 4.1 of the Purchase Agreement by a particular
Stockholder, the Escrow Agent shall distribute to ABIOMED only those shares of
ABIOMED Common Stock held in the Escrow Fund and credited to the Account of the
Stockholder who is responsible for such Claim, as such Stockholder is
identified in the award, agreement or notice delivered to the Escrow Agent
pursuant to Section 2(a) hereof.
(c) Promptly following the Termination Date, the Escrow
Agent shall, on receipt of written notice from ABIOMED or the Stockholders
Representative, distribute to the Stockholders Representative on behalf of the
Stockholders the entire then remaining balance, if any, of the Escrow Fund,
that is in excess of the aggregate Claimed Amounts specified in all Claim
Notices which, on or prior to such date, have been delivered to the Escrow
Agent but which have not been paid to ABIOMED or otherwise discharged or
withheld pursuant to this Section 2.
Any such distribution shall be deducted from each Stockholders Account
and distributed based on each Stockholders Pro Rata Portion. To the extent that the final amount of a Claim
remains unknown on the Termination Date, a number of shares of ABIOMED Common
Stock reasonably estimated by ABIOMED and the Stockholders Representative as
providing adequate recourse for satisfaction of the final amount of the Claim,
plus an amount reasonably estimated by ABIOMED and the Stockholders
Representative to provide reimbursement for costs and expenses incurred in
resolving such Claim, shall be reserved until the final resolution and
satisfaction of such Claim, and the Escrow Agent may rely upon a written
certification executed by both ABIOMED and the Stockholders Representative as
to such amounts. Any portion of the
Escrow Fund which shall continue to be held by the Escrow Agent pursuant to the
preceding sentence shall be so held until such time as all disputed Claims
hereunder shall have been settled or resolved and notice of such settlement or
resolution setting forth the amounts to be paid to ABIOMED shall have been
delivered to the Escrow Agent in accordance with the terms hereof. As outstanding Claims are resolved, reserves
in excess of the amounts withheld with respect to all Claims remaining
unresolved shall be released to the Stockholders Representative on behalf of
the Stockholders and shall be deducted from each Stockholders Account and
distributed based on each Stockholders Pro Rata Portion.
(d) In order that the Escrow Agent may distribute the shares
of ABIOMED Common Stock from the Escrow Fund as provided in this Agreement,
ABIOMED agrees to cause its transfer agent to deliver to the Escrow Agent upon
surrender of a certificate then held by the Escrow Agent (i) a new certificate
or certificates representing the shares of ABIOMED Common
4
Stock to be distributed hereunder, issued in the name of the
distributee and (ii) if necessary, new certificates representing shares of
ABIOMED Common Stock issued in the name of the Escrow Agent to be retained by
the Escrow Agent as part of the Escrow Fund.
The Stockholders shall execute and deliver such instruments of transfer,
stock powers and instructions to the Escrow Agent and ABIOMED as may be
reasonably requested to give effect to the provisions of this Agreement. Each of the Stockholders hereby authorizes
the Stockholders Representative to execute and deliver any such instruments,
powers and instructions on its behalf and hereby constitutes and appoints the
Stockholders Representative its true and lawful agent and attorney-in-fact,
with full power of substitution to the Stockholders Representative and each
substitution so appointed, and full power and authority in its name, place and
stead, to make, execute and acknowledge all such documents.
3.
Resolution
of Conflicts
.
(a) In case the Stockholders Representative shall so object
in writing to the indemnification of ABIOMED, in respect of any Claim or Claims
made by ABIOMED in any Claim Notice, the Stockholders Representative and
ABIOMED shall attempt in good faith to agree upon their rights with respect to
each of such claims in accordance with Section 11.1 of the Purchase
Agreement. If the Stockholders
Representative and ABIOMED shall so agree, a memorandum setting forth such
agreement shall be prepared and signed by both parties and shall be furnished
to the Escrow Agent. The Escrow Agent
shall be entitled to rely on any such memorandum and to distribute shares of
ABIOMED Common Stock from the Escrow Fund in accordance with the terms of the
memorandum.
(b) If an agreement cannot be reached after good faith
negotiation, the Escrow Agent shall deliver to ABIOMED that portion of the Claimed
Amount upon the Escrow Agents receipt of (i) a final order of Arbitrators in
accordance with Section 11.2 of the Purchase Agreement setting forth the
resolution of such dispute and the portion of the Claimed Amount in dispute, if
any, to which the Arbitrators have determined ABIOMED is entitled to be
indemnified, (ii) a joint written settlement agreement executed by the
Stockholders Representative and ABIOMED, which agreement provides that the
Stockholders Representative has agreed ABIOMED is entitled to be indemnified
for a portion of the Claimed Amount in dispute.
4.
Escrow
Agents Duties
.
(a) Except as expressly contemplated by this Agreement or by
joint written instructions from ABIOMED and the Stockholders Representative,
the Escrow Agent shall not transfer or otherwise dispose of in any manner all
or any portion of the Escrow Fund, except pursuant to an order of a court of
competent jurisdiction.
(b) The Escrow Agent shall be obligated only for the
performance of such duties as are specifically set forth herein and may rely
and shall be protected in relying or refraining from acting on any instrument
reasonably believed to be genuine and to have been signed or presented by the proper
party or parties. With respect to the
Stockholders Representative, the Escrow
5
Agent and ABIOMED shall be entitled to rely on any instrument executed
by the Stockholders Representative. The
Escrow Agent shall not be liable for any act done or omitted hereunder as
Escrow Agent while acting in good faith and in the exercise of reasonable
judgment, and any act done or omitted pursuant to the advice of either in-house
or outside counsel to the Escrow Agent shall be conclusive evidence of such
good faith.
(c) The Escrow Agent is hereby expressly authorized to
disregard any and all warnings given by any of the parties hereto (but not any
communications properly delivered pursuant to Sections 2 or 3 hereof) or by any
other person, excepting only a final order of arbitrators in accordance with Section 11.2
of the Purchase Agreement or orders or process of courts of law, and is hereby
expressly authorized to comply with and obey any such final order of arbitrators
or any orders, judgments or decrees of any court of law. In case the Escrow Agent obeys or complies
with any such order, judgment or decree of any court of law, the Escrow Agent
shall not be liable to any of the parties hereto or to any other person by
reason of such compliance, notwithstanding any such order, judgment or decree
being subsequently reversed, modified, annulled, set aside, vacated or found to
have been entered without jurisdiction.
(d) The Escrow Agent shall not be liable in any respect on
account of the identity, authority or rights of the parties executing or
delivering or purporting to execute or deliver this Agreement or any documents
or papers deposited or called for hereunder.
(e) If any party to this Agreement disagrees on anything
connected with the Escrow Fund, (1) the Escrow Agent will not have to settle
the matter, (2) the Escrow Agent may wait for a settlement by appropriate legal
proceedings or other means it may require, and in such event it will not be
liable for interest or damage, (3) if the Escrow Agent intervenes in or is made
a party to any legal proceedings, it will be entitled to such reasonable
compensation for services, costs and attorneys fees pursuant to Section 5
hereof and (4) the Escrow Agent is entitled to hold assets deposited in the
Escrow Fund pending settlement of the disagreement by any of the above means.
5.
Indemnification and Fees of Escrow
Agent
.
(a) In consideration of its acceptance of the appointment as
Escrow Agent, the Stockholders Representative on behalf of the Stockholders
and ABIOMED, jointly and severally, shall indemnify and hold the Escrow Agent
harmless as to any liability incurred by it (other than for the ordinary
services contemplated by this Agreement) to any other person or entity by
reason of its having accepted the same or in carrying out any of the terms
hereof, and shall reimburse the Escrow Agent for all its out-of-pocket
expenses, including, among other things, reasonable counsel fees and court
costs, incurred by reason of its position hereunder or actions taken pursuant
hereto, except in the event of the negligence or misconduct of the Escrow Agent;
provided, however, that such liability or expenses shall be divided equally
between ABIOMED, on the one hand, and the Stockholders on the other. The fees and charges set forth below for the
services of the Escrow Agent will be considered compensation for the Escrow
Agents ordinary services as contemplated by this Agreement.
6
(b) The Escrow Agent shall receive fees for its services hereunder in
accordance with the Fee Schedule attached hereto as
Exhibit B
. All such fees shall be paid 50% by the
Stockholders and 50% by ABIOMED.
6.
Resignation, Removal, Successor
.
(a) The Escrow Agent may resign as escrow agent under this
Agreement and thereby become discharged from the obligations hereby created, by
notice in writing given to ABIOMED and the Stockholders Representative not
less than thirty days before such resignation is to take effect.
(b) The Escrow Agent may be removed at any time by an
instrument or concurrent instruments in writing delivered to the Escrow Agent
and signed by ABIOMED and the Stockholders Representative.
(c) If at any time hereafter the Escrow Agent shall give
notice of its resignation pursuant to Section 6(a) hereof, shall be
removed pursuant to Section 6(b) hereof, or shall be dissolved or
otherwise become incapable of acting, or the position of the Escrow Agent shall
become vacant for any other reason, ABIOMED and the Stockholders
Representative shall promptly appoint a successor Escrow Agent, which shall be
a bank or trust company having assets in excess of $500 million. Upon such appointment such successor shall
execute, acknowledge and deliver to its predecessor, and also to ABIOMED and
the Stockholders Representative, an instrument in writing accepting such
appointment hereunder and agreeing to be bound by the terms and provisions of
this Agreement. Thereupon such successor
Escrow Agent, without any further act, shall become fully vested with all the
rights, immunities, and powers, and shall be subject to all of the duties and
obligations of its predecessor and such predecessor Escrow Agent shall promptly
deliver the Escrow Fund to such successor.
(d) In the event that a successor Escrow Agent has not been
appointed within thirty days of the date of any such resignation, removal,
dissolution, incapacity or vacancy, the Escrow Agent or its legal
representative shall deposit the Escrow Fund with the clerk of a court of
competent jurisdiction and shall interplead all of the parties hereto. Upon so depositing the Escrow Fund and filing
its pleading, this Agreement shall terminate as to the Escrow Agent.
(e) In the event the Escrow Agent is merged or consolidated
with any other entity, and as a result thereof the Escrow Agent ceases to exist
as a separate entity, then such surviving entity, without any further act,
shall become fully vested with all the rights, immunities, and powers, and shall
be subject to all of the duties and obligations, of the Escrow Agent.
7.
Valuation
of ABIOMED Common Stock for Indemnification Purposes
.
Whenever the Escrow Agent delivers any shares
of ABIOMED Common Stock held in escrow to ABIOMED to satisfy all or a portion
of an Indemnification Claim, such shares of ABIOMED Common Stock shall be
valued in accordance with the provisions of Section 9.3(d) of the
7
Purchase Agreement.
8.
Conflict With Purchase Agreement
.
In the case of a conflict between the
provisions of this Agreement and the Purchase Agreement, the provisions of the Purchase
Agreement shall govern.
9.
Voting and Dividends
.
Notwithstanding that a share of ABIOMED Common Stock is held in the Escrow
Fund, nothing contained in this Agreement shall in any way limit the rights of
the Stockholders to exercise the votes attaching to such shares of ABIOMED
Common Stock or to receive dividends thereon (other than dividends of shares of
ABIOMED Common Stock or other securities, which shall become part of the Escrow
Fund as provided in Section 1(b) hereof).
10.
Termination
.
This Agreement shall terminate upon the
distribution by the Escrow Agent of all of the Escrow Fund in accordance with
the terms of this Agreement.
11.
Amendments and Supplements
. This Agreement may not be amended, modified
or supplemented by the parties hereto in any manner, except by an instrument in
writing signed by ABIOMED, the Stockholders Representative and the Escrow Agent.
12.
No Waiver
. The
terms and conditions of this Agreement may be waived only by a written
instrument signed by the party waiving compliance. The failure of any party hereto to enforce at
any time any of the provisions of this Agreement shall in no way be construed
to be a waiver of any such provision, nor in any way to affect the validity of
this Agreement or any part hereof or the right of such party thereafter to
enforce each and every such provision.
No waiver of any breach of or non-compliance with this Agreement shall
be held to be a waiver of any other or subsequent breach or
non-compliance. The rights and remedies
herein provided are cumulative and are not exclusive of any rights or remedies
that any party may otherwise have at law or in equity.
13.
Governing Law
. This
Agreement shall be governed by, and construed and enforced in accordance with,
the substantive laws of the State of Delaware, without regard to its principles
of conflicts of laws.
14.
Notice
. All notices
and other communications hereunder shall be in writing and shall be deemed
given if delivered by hand, sent by facsimile transmission with confirmation of
receipt, or sent via a reputable overnight courier service with confirmation of
receipt requested, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice), and shall be deemed
given on the date on which delivered by hand or otherwise on the date of
receipt as confirmed:
8
If to ABIOMED:
ABIOMED, Inc.
22 Cherry Hill Drive
Danvers, MA 01923
USA
Attention: President
Facsimile: (01)
978-777-8411
With a required copy to:
Foley Hoag LLP
155 Seaport Boulevard
Boston, Massachusetts 02210
USA
Attention: Peter M. Rosenblum, Esq.
Facsimile: (01) 617 832-7000
and
Freshfields Bruckhaus Deringer
Taunusanlage 11
60329 Frankfurt Am Main
Germany
Attention: Dr. Karsten Müller-Eising
Facsimile: (49) 69 23 26 64
To any Stockholder or the Stockholders Representative:
c/o Accelerated Technologies, Inc., as Stockholders Representative
401 Hackensack Avenue
Hackensack, NJ 07601
Attention: Richard Geoffrion
Facsimile: (201) 487-2005
With a required copy to:
Fulbright & Jaworski, L.L.P.
666 Fifth Avenue
New York, New York 10103
Attn: Joseph F. Daniels, Esq.
Facsimile: (212) 318-3400
To the Escrow Agent:
American Stock Transfer & Trust Company
6201 15
th
Avenue, 2
nd
Floor
9
Brooklyn, NY 11219
Attn: Karen Trachtenberg
13.
Construction of
Agreement
. A reference to
a Section shall mean a Section in this Agreement unless otherwise
expressly stated. The titles and
headings herein are for reference purposes only and shall not in any manner
limit the construction of this Agreement which shall be considered as a
whole. The words include, includes
and including when used herein shall be deemed in each case to be followed by
the words without limitation.
14.
Entire Agreement,
Assignability, etc.
. This
Agreement and the Purchase Agreement and the documents and other agreements
among the parties hereto and thereto as contemplated by or referred to herein
or therein constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to such
subject matter. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. This
Agreement is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder, except as otherwise expressly provided
herein and shall not be assignable by operation of law or otherwise.
15.
Validity
. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, each of which shall remain in full force
and effect.
16.
Counterparts
.
This Agreement may be executed in one or more
counterparts, all of which together shall constitute one and the same
Agreement.
*
* * *
*
10
IN WITNESS WHEREOF, the parties have caused this Escrow Agreement to be
executed as an agreement under seal as of the date first written above.
|
ABIOMED, INC.
|
|
|
|
/s/ Javier Jimenez
|
|
|
Name: Javier Jimenez
|
|
Title: VP Operations
|
|
|
|
AMERICAN STOCK TRANSFER & TRUST COMPANY
|
|
|
|
/s/ Herbert J. Lemmer
|
|
|
Name: Herbert J. Lemmer
|
|
Title: Vice President
|
[Signature Page to Escrow Agreement]
|
STOCKHOLDERS REPRESENTATIVE
|
|
|
|
|
|
ACCELERATED TECHNOLOGIES, INC.
|
|
|
|
/s/ John P. Brancaccio
|
|
|
Name: John P. Brancaccio
|
|
Title: CFO
|
|
IMPELLA STOCKHOLDERS
|
|
|
|
|
|
|
ACCELERATED
TECHNOLOGIES, INC.
|
|
|
|
|
|
|
|
|
|
By
|
/s/ John P.
Brancaccio
|
|
|
|
|
Name: John P. Brancaccio
|
|
|
|
Title: CFO
|
|
|
|
|
|
|
|
|
|
|
MRNA FUND II L.P.
|
|
|
By:
OBP Management IV L.P., its General Partner
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Jeffrey T.
Barnes
|
|
|
|
|
Name: Jeffrey T. Barnes
|
|
|
|
Title: General Partner
|
|
|
|
|
|
|
|
|
|
|
OXFORD BIOSCIENCE PARTNERS IV L.P.
|
|
|
By:
OBP Management IV L.P., its General Partner
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Jeffrey T.
Barnes
|
|
|
|
|
Name: Jeffrey T. Barnes
|
|
|
|
Title: General Partner
|
|
GIZA EXECUTIVE VENTURE FUND III L.P.
|
|
|
|
|
|
|
By:
|
/s/ Avi Molcho
|
|
|
Name: Avi Molcho
|
|
Title: Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Zvi Schecter
|
|
|
Name: Zvi Schechter
|
|
Title: Managing Director
|
|
|
|
|
|
|
|
GIZA ALPINVEST VENTURE FUND III L.P.
|
|
|
|
|
|
|
By:
|
/s/ Avi Molcho
|
|
|
Name: Avi Molcho
|
|
Title: Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Zvi Schecter
|
|
|
Name: Zvi Schechter
|
|
Title: Managing Director
|
|
|
|
|
|
|
GIZA GE VENTURE FUND III L.P.
|
|
|
|
|
By:
|
/s/ Avi Molcho
|
|
|
Name: Avi Molcho
|
|
Title: Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Zvi Schecter
|
|
|
Name: Zvi Schechter
|
|
Title: Managing Director
|
|
GIZA GMULOT VENTURE FUND III L.P.
|
|
|
|
|
|
|
By:
|
/s/ Avi Molcho
|
|
|
Name: Avi Molcho
|
|
Title: Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Zvi Schecter
|
|
|
Name: Zvi Schechter
|
|
Title: Managing Director
|
|
|
|
|
|
|
GIZA VENTURE FUND III L.P.
|
|
|
|
|
|
|
|
By:
|
/s/ Avi Molcho
|
|
|
Name: Avi Molcho
|
|
Title: Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Zvi Schecter
|
|
|
Name: Zvi Schechter
|
|
Title: Managing Director
|
|
/s/ Donald
S. Baim
|
|
|
Dr. Donald
S. Baim
|
|
|
|
|
|
/s/ Daniel
Burkhoff
|
|
|
Dr. Daniel
Burkhoff
|
|
|
|
|
|
/s/ Peter J.
Fitzgerald
|
|
|
Dr. Peter J.
Fitzgerald
|
|
|
|
|
|
|
|
/s/ Richard
Geoffrion
|
|
|
Richard
Geoffrion
|
|
|
|
|
|
/s/ Martin
B. Leon
|
|
|
Dr. Martin
B. Leon
|
|
|
|
|
|
/s/ Mark
Maguire
|
|
|
Mark Maguire
|
|
|
|
|
|
/s/ Arthur
Pergament
|
|
|
Arthur
Pergament
|
|
|
|
|
|
/s/ Paul
Spence
|
|
|
Dr. Paul
Spence
|
|
|
|
|
|
/s/ Paul S.
Teirstein
|
|
|
Dr. Paul S.
Teirstein
|
|
|
|
|
|
/s/ Eberhard Grube
|
|
|
Dr. Eberhard
Grube
|
|
ABN AMRO
PARTICIPATIES B.V.
|
|
|
|
|
|
|
By:
|
/s/ M. A. van Osis
|
|
|
Name: M. A. van Osis
|
|
Director
|
|
|
|
|
|
|
By:
|
/s/ LPA Bergstein
|
|
|
Name: LPA Bergstein
|
|
Director
|
|
MEDICA II INVESTMENTS
(INTERNATIONAL) L.P.
|
|
|
|
|
|
|
|
By:
|
/s/ Yuval Binur
|
|
|
Name: Yuval Binur
|
|
Title: GP
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
Title:
|
|
|
|
|
MEDICA II INVESTMENTS (P.F) (ISRAEL) L.P.
|
|
|
|
|
|
|
|
By:
|
/s/ Yuval Binur
|
|
|
Name: Yuval Binur
|
|
Title: GP
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
Title:
|
|
|
|
|
|
|
|
MEDICA II INVESTMENTS (ISRAEL) L.P.
|
|
|
|
|
|
|
|
By:
|
/s/ Yuval Binur
|
|
|
Name: Yuval Binur
|
|
Title: GP
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
Title:
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
(Dr. Paolo Cremascoli
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power of attorney)
|
|
|
|
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
(Guido Derjung
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power of attorney)
|
|
|
|
|
|
/s/ Rolf Käse
|
|
(Dr. Rolf Käse)
|
|
|
|
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
(Dirk Michels
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power of attorney)
|
|
|
|
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
(Christoph Nix
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power of attorney)
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
(Prof. Dr. Günter Rau
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power
of attorney)
|
|
|
|
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
(Community of Heirs After
Prof. Dr. Helmut Reul
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power
of attorney)
|
|
|
|
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
(Sebastian Schwandtner
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power
of attorney)
|
|
|
|
|
|
/s/ Volker Trenz /s/
Rolf Käse
|
|
(Dr. Thorsten Sieß
represented by
Volker Trenz and Dr. Rolf Käse
on the basis of their power
of attorney)
|