Exhibit 2.6
November 29, 2006
VIA MESSENGER AND FACSIMILE
em Vascular, Inc.
0000 Xxxxx Xxxxxx
Xxxxx Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Chief Executive Officer
RE: OPTION AND ASSET PURCHASE AGREEMENT
Dear Xx. Xxxx
We are pleased to inform you that ATS Medical, Inc. ("ATS") has delivered its
Option Exercise Notice dated November 29, 2006 and has exercised its Option to
purchase the Assets of em Vascular, Inc. (the "Company") pursuant to that
certain Option and Asset Purchase Agreement, entered into as of May 31, 2005
(the "Agreement"), by and among ATS, the Company, Xxxxx X. March, M.D., Xxxx
Xxxxx, Xxxxxx X. Xxxxxxxxxx and Xxxxx X. Xxxxxxxx XX. Please find enclosed with
this letter a copy of the Option Exercise Notice. Capitalized terms used herein
will have the meanings ascribed to them in the Agreement.
To start our closing preparations, we request pursuant to Section 1.2(a) of the
Agreement that the Company prepare and deliver to us an Updated Disclosure
Schedule as soon as practicable, and, in any case, no later than December 28,
2006. We would also like the Company to review and respond to the enclosed
updated due diligence request list, which will help us complete our due
diligence review of the Company's operations over the last eighteen months and
facilitate our review of the Updated Disclosure Schedule.
As we work towards a successful closing of the asset purchase, we think it would
be prudent to confirm one of the basic terms in the deal. Section 1.8 of the
Agreement incorrectly states that ATS has no set-off right against future
contingent payments to cover the Company's indemnification obligations under the
Agreement. This is not only contradictory to the parties' clear intentions set
forth in Section 8.5, where this right was thoughtfully negotiated and carefully
drafted, and the rest of the Agreement, but Section 1.8 also contradicts the
plain disclosure summary of ATS' set-off rights in the information statement
drafted by the parties and provided by the Company to its shareholders prior to
their vote in favor of this transaction. Accordingly, we request that you sign
below on behalf of the Company to acknowledge and confirm that Section 1.8 of
the Agreement is null and void under the Agreement and shall be of no force and
effect.
I suggest that we schedule a call to discuss the timelines and processes going
forward at your earliest convenience. My colleague, Xxxx Xxxxxx, and I will be
heading up our efforts. Please
em Vascular, Inc.
November 29, 2006
Page 2
give me or Xxxx a call at (000) 000-0000 or send us an email so that we can
arrange a mutually convenient time that will work for you.
Sincerely,
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Vice President, Research and Development
ATS MEDICAL, INC.
Acknowledged and Agreed to this Nov. 29, 2006.
EM VASCULAR, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
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Its: CEO
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cc: Xxxxxx & Whitney LLP
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
