Exhibit A
---------
February 15, 2005
Xxxxx Xxxxxxx & Co.
Banc of America Securities LLC
As Representatives of the Several Underwriters
c/o Xxxxx Xxxxxxx & Co.
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Re: ev3 Inc. (as the successor to the merger of ev3 LLC with and into
ev3 Inc., the "Company")
-----------------------------------------------------------------
Ladies and Gentlemen:
The undersigned is, or will immediately prior to the Offering (as defined
below) be, an owner of record or the beneficial owner of certain shares of
common stock of the Company ("Common Stock") or securities convertible into or
exchangeable or exercisable for Common Stock. The Company proposes to carry out
an initial public offering of Common Stock (the "Offering") for which you will
act as the representatives of the underwriters. The undersigned recognizes that
the Offering will be of benefit to the undersigned and will benefit the Company
by, among other things, raising additional capital for its operations. The
undersigned acknowledges that you and the other underwriters are relying on this
letter in carrying out the Offering and in entering into underwriting
arrangements with the Company with respect to the Offering.
In consideration of the foregoing, the undersigned hereby agrees that the
undersigned will not, without the prior written consent of Xxxxx Xxxxxxx & Co.
and Banc of America Securities LLC (which consent may be withheld in their sole
discretion), directly or indirectly, sell, offer, contract or grant any option
to sell (including, without limitation, any short sale), pledge (including
margin stock), transfer, establish an open "put equivalent position" within the
meaning of Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended,
or otherwise dispose of or transfer, or commence the offering of, any shares of
Common Stock, options or warrants to acquire shares of Common Stock, or
securities exchangeable or exercisable for or convertible into shares of Common
Stock currently or hereafter owned either of record or beneficially by the
undersigned, or publicly announce an intention to do any of the foregoing, for a
period commencing on the date hereof and continuing through the close of trading
on the date 180 days after the date of the final prospectus relating to the
Offering (the "Prospectus"). If (i) the Company issues an earnings release or
material news, or a material event relating to the Company occurs, during the
last 17 days of the lock-up period, or (ii) prior to the expiration of the
lock-up period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the lock-up period, then,
in each case, the restrictions imposed by this agreement shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event. The
foregoing sentences shall not apply to (i) the transfer of any or all of the
shares of Common Stock, stock options or warrants owned by the undersigned,
either during the undersigned's lifetime or on death, by gift, will or intestate
succession to any member of the immediate family of the undersigned or transfers
to a trust the beneficiaries of which are exclusively the undersigned and/or a
member or members of the undersigned's immediate family, (ii) sales,
dispositions or other transfers
to members of the undersigned's family or affiliates of the undersigned,
including its partners (if a partnership) or its members (if a limited liability
company) or (iii) transfers to the underwriters pursuant to the Offering and the
Underwriting Agreement; provided, however, that in any transfer made pursuant to
clause (i) or (ii) it shall be a condition to such transfer that the transferee
executes and delivers to Xxxxx Xxxxxxx & Co. and Banc of America Securities LLC
an agreement stating that the transferee is receiving and holding the Common
Stock subject to the provisions of this letter agreement, and there shall be no
further transfer of such Common Stock except in accordance with this letter.
The undersigned hereby acknowledges and agrees that written notice of any
extension of the lock-up period pursuant to the previous paragraph will be
delivered by Xxxxx Xxxxxxx & Co. and Banc of America Securities LLC to the
Company (in accordance with the notice provision in the Underwriting Agreement)
and that any such notice properly delivered will be deemed to have been given
to, and received by, the undersigned. The undersigned further agrees that, prior
to engaging in any transaction or taking any other action that is subject to the
terms of this letter agreement during the period from the date of this letter
agreement to and including the 34th day following the expiration of the initial
180-day lock-up period, it will give notice thereof to the Company and will not
consummate such transaction or take any such action unless it has received
written confirmation from the Company that the lock-up period (as may have been
extended pursuant to the previous paragraph) has expired.
The undersigned also agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of shares of Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock held by the undersigned except in
compliance with the foregoing restrictions.
With respect to the Offering only, the undersigned waives any registration
rights relating to registration under the Securities Act of 1933, as amended, of
any Common Stock owned either of record or beneficially by the undersigned,
including any rights to receive notice of the Offering. In addition, during the
period through the close of trading on the date 180 days after the date of the
Prospectus, as such 180-day period may be extended pursuant to the second
paragraph of this letter agreement, the undersigned will not make any demand
for, or exercise any right with respect to, the registration of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
without the prior written consent of Xxxxx Xxxxxxx & Co. and Banc of America
Securities LLC (which consent may be withheld in their sole discretion).
2
This agreement is irrevocable and will be binding on the undersigned and
the respective successors, heirs, personal representatives and assigns of the
undersigned. This agreement shall automatically terminate upon the earliest to
occur, if any, of: (a) either Xxxxx Xxxxxxx & Co. and Banc of America Securities
LLC, on the one hand, or the Company, on the other hand, advising the other in
writing, prior to the execution of the Underwriting Agreement, that it has
determined not to proceed with the Offering, (b) termination of the Underwriting
Agreement entered into between the Company, the underwriters and certain of the
Company's stockholders before the sale of any Common Stock to the underwriters
or (c) December 31, 2005, in the event that the registration statement has not
been declared effective by that date.
Vertical Fund I, L.P.
Vertical Fund II, L.P.
By: The Vertical Group, L.P., General Partner
------------------------------------------------------
Printed Name of Holder
/s/ Xxxx X. Xxxxxxxx
By: --------------------------------------------------
Signature
Xxxx X. Xxxxxxxx as General Partner of The Vertical Group, L.P.
--------------------------------------------------------------
Printed Name of Person Signing
(and indicate capacity of person signing if signing as custodian, trustee, or on
behalf of an entity)
