Exhibit 1
CONTRIBUTION AND EXCHANGE AGREEMENT
This Contribution and Exchange Agreement, dated as of April 4, 2005 (the
"Agreement"), is entered into by and among the institutional stockholders listed
on Schedule I hereto (each, a "Stockholder" and collectively, the
"Stockholders"), ev3 LLC, a Delaware limited liability company ("ev3 LLC"), ev3
Inc., a Delaware corporation (the "Company"), and Micro Therapeutics, Inc., a
Delaware corporation ("MTI"). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in Section 9.1 of this
Agreement.
R E C I T A L S
WHEREAS, the Stockholders are the owners of the number of shares of
common stock, par value $0.001 per share, of MTI ("MTI Common Stock") set forth
opposite such Stockholders' names on Schedule II hereto (collectively, the "MTI
Shares"), representing all of the MTI Common Stock owned directly by the
Stockholders (but excluding any shares of MTI Common Stock the Stockholders may
be deemed to beneficially own by virtue of their respective ownership of ev3
LLC);
WHEREAS, the Company intends to file a Registration Statement on Form S-1
(the "Registration Statement") with the SEC pursuant to which it will pursue the
Initial Public Offering of its common stock, par value $0.01 per share ("Company
Common Stock");
WHEREAS, simultaneously with the execution of this Agreement, the Company
and ev3 LLC will enter into an agreement and plan of merger (the "Merger
Agreement") pursuant to which ev3 LLC will agree, on the terms and subject to
the conditions set forth in the Merger Agreement, to merge (the "Merger") with
and into the Company with the Company surviving the Merger, as more fully
described in the Merger Agreement;
WHEREAS, simultaneously with the execution of this Agreement, the Company
and certain noteholders named therein will enter into a note contribution and
exchange agreement (the "Note Contribution Agreement") pursuant to which the
noteholders will agree, on the terms and subject to the conditions set forth in
the Note Contribution Agreement, to contribute to the Company notes of ev3
Endovascular, Inc., which following the Merger will be a wholly owned subsidiary
of the Company, in exchange for Company Common Stock, as more fully described in
the Note Contribution Agreement;
WHEREAS, on the terms and subject to the conditions set forth in this
Agreement, including, without limitation, Article VII herein, effective at the
Closing (as defined in Section 2.1) the Stockholders desire to contribute to ev3
LLC, and ev3 LLC desires to accept from the Stockholders, the shares of MTI
Common Stock owned by them as a contribution to capital (the "Contribution"), in
exchange (the "Exchange") for the issuance to the Stockholders of the number of
common membership units of ev3 LLC determined in the manner set forth in Section
1.3 below (collectively, the "Common Membership Units"); and
WHEREAS, for the purpose of Section 203 of the Delaware General Corporation
Law ("DGCL") and the Rights Agreement, MTI desires to acknowledge the
Contribution and Exchange and make certain representations, warranties and
covenants related thereto.
NOW, THEREFORE, in consideration of the premises and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE I.
CONTRIBUTION AND EXCHANGE
Section 1.1. Contribution of MTI Common Stock. On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions hereof, including, without limitation, the satisfaction (or
waiver, to the extent permitted by this Agreement and applicable law) of the
conditions set forth in Article VII of this Agreement, effective at the Closing
each of the Stockholders hereby agrees to contribute, transfer, assign and
convey to ev3 LLC all right, title and interest in and to all of the shares of
MTI Common Stock owned directly by such Stockholder, which MTI Shares are set
forth opposite such Stockholder's name on Schedule II hereto, together with any
and all rights, privileges, benefits, obligations and liabilities appertaining
thereto, reserving unto such Stockholder no rights or interests therein
whatsoever, to have and to hold the same unto ev3 LLC and its heirs, legal
representatives, successors and assigns, from and after the Closing to its own
proper use forever.
Section 1.2. Acceptance of Contribution. On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions hereof, effective at the Closing ev3 LLC hereby agrees to
accept the Contribution of the MTI Common Stock pursuant to Section 1.1.
Section 1.3. Exchange. In consideration of the Contribution by the
Stockholders and on the basis of the representations, warranties and agreements
contained herein, and subject to the terms and conditions hereof, on the Closing
Date and in exchange for the MTI Shares contributed to ev3 LLC pursuant to
Section 1.1, ev3 LLC shall issue and deliver to each Stockholder the number of
Common Membership Units determined by dividing (i) the product obtained by
multiplying (A) the number of shares of MTI Common Stock owned directly by such
Stockholder (as set forth opposite the respective Stockholder's name on Schedule
II hereto) by (B) the quotient obtained by dividing (1) the sum of the daily
closing prices per share of MTI Common Stock as quoted on the NASDAQ National
Market (symbol "MTIX") and reported in The Wall Street Journal (Northeast
Edition), absent manifest error, for the twenty (20) consecutive trading days
from and including the date the Registration Statement is first filed by the
Company with the SEC by (2) twenty (20), by (ii) the per share Split-Adjusted
Midpoint (as defined below). In the event the daily closing price per share of
MTI Common Stock as quoted on the NASDAQ National Market differs from the daily
closing price reported in The Wall Street Journal (Northeast Edition), the daily
closing price per share of MTI Common Stock as quoted on the NASDAQ National
Market shall control. The "Split-Adjusted Midpoint" shall equal the quotient
obtained by dividing (i) the midpoint of the range of estimated initial public
offering prices as set forth on the cover of the Preliminary Prospectus by (ii)
the number of shares of Company Common Stock necessary to obtain one share of
Company Common Stock in connection with the reverse split to be declared with
respect to Company Common Stock that is to take effect prior to the consummation
of the Initial Public Offering (the "Reverse Split"). For example, if the
Preliminary Prospectus states that the Company will effect a 1 for 5 Reverse
Split, clause (ii) of the definition of Split-Adjusted Midpoint shall equal 5.
Section 1.4. No Fractional Units Notwithstanding anything to the contrary
contained herein, no certificates or scrip representing fractional Common
Membership Units shall be issued to any Stockholder in connection with the
Exchange. Instead, any fractional Common Membership Units that a Stockholder
would otherwise be entitled to receive as a result of the Exchange shall be
rounded up to the nearest whole number of Common Membership Units.
Section 1.5. Power of Attorney. From and after the Closing Date, each
Stockholder constitutes and appoints ev3 LLC, its successors and assigns, as the
Stockholder's true and lawful attorney-in-fact, with full power of substitution,
in the name of ev3 LLC or in the name of the Stockholder, to execute, deliver,
file and/or record such documents, agreements and instruments as shall be
necessary or appropriate to effect the Contributions pursuant to this Article I.
The foregoing powers are coupled with an interest and shall be irrevocable.
Section 1.6. Characterization. The Contribution, the transactions described
in the Merger Agreement and the Note Contribution Agreement and the public's
purchase of stock in the Initial Public Offering are part of an integrated plan
and are intended together to qualify as a tax-free transaction under Section 351
of the Internal Revenue Code of 1986, as amended.
ARTICLE II.
CLOSING
Section 2.1. Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at 9:30 a.m., New York City time, on
a date as may be mutually agreed to by ev3 LLC and the Stockholders that is
within two (2) business days of the date the Preliminary Prospectus is first
filed by the Company with the SEC (the "Closing Date"); provided, that on or
before the Closing Date, all of the conditions set forth in Article VII shall
have been fulfilled or waived in accordance with this Agreement, at the offices
of King & Spalding LLP, 1185 Avenue of the Americas, New York, New York, or such
other location as ev3 LLC, the Company and the Stockholders shall mutually
select.
Section 2.2. Closing Deliveries. At the Closing,
(a) Each Stockholder shall deliver to ev3 LLC the stock certificates
representing the MTI Shares being contributed by such Stockholder, duly endorsed
or accompanied by a duly executed stock power, all in appropriate form and
sufficient for transfer of the MTI Shares to ev3 LLC.
(b) ev3 LLC shall deliver to each Stockholder an amended Schedule B to the
operating agreement of ev3 LLC (the "Operating Agreement") reflecting the
Contribution and Exchange as contemplated by Section 4.1 thereof. [K&S: Need to
include mechanism in merger agreement to adjust the schedule to the merger
agreement to include the common membership units issued.]
(c) MTI shall deliver to ev3 LLC, the Company and each Stockholder a
certificate, dated the Closing Date, of the Secretary of MTI certifying to and
attaching the resolutions of its Board of Directors and the Special Independent
Committee setting forth the authorizations and approvals contemplated by
Sections 5.2 and 5.3 of this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF ev3 LLC
ev3 LLC represents and warrants to each of the Stockholders as follows:
Section 3.1. Organization. ev3 LLC is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
Section 3.2. Authority. The Board of Managers of ev3 LLC has authorized the
execution, delivery and performance of this Agreement and the transactions
contemplated hereby, including, without limitation, the issuance and delivery of
the Common Membership Units to the Stockholders in accordance with the terms of
this Agreement and the Operating Agreement. No other action is necessary to
authorize such execution, delivery and performance, and upon such execution and
delivery, this Agreement shall constitute a valid and binding obligation of ev3
LLC, enforceable against ev3 LLC in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditor's rights generally or by general
principles of equity.
Section 3.3. Issuance of Common Membership Units. The Common Membership
Units to be issued by ev3 LLC pursuant to this Agreement, when issued in
accordance with the provisions hereof, will be validly issued by ev3 LLC, fully
paid and nonassessable, and no member of ev3 LLC has, or will have, any
preemptive rights to subscribe for any Common Membership Units. [K&S: Confirm
you are obtaining a waiver of the subscription rights in the Holders Agreement.]
Section 3.4. Consents; Conflicts. Except with respect to filings made in
connection with exemptions from registration under state or federal securities
laws, the creation, authorization, issuance, offer and sale of the Common
Membership Units hereunder do not require any consent, approval or authorization
of, or filing, registration or qualification with, any Person or governmental
authority on the part of ev3 LLC or the vote, consent or approval in any manner
of the holders of any security of ev3 LLC as a condition to the execution and
delivery of this Agreement or the creation, authorization, issuance, offer and
sale of the Common Membership Units hereunder. The execution and delivery by ev3
LLC of this Agreement and the performance by ev3 LLC of its obligations
hereunder will not violate (i) the terms and conditions of the Operating
Agreement of ev3 LLC, or any agreement or instrument to which ev3 LLC is a party
or by which it is bound or (ii) subject to the accuracy of the Stockholders'
representations and warranties contained herein, including, without limitation,
the representations and warranties contained in Section 4.3 hereof, or any
federal or state law.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders, severally and not jointly, represents and
warrants to ev3 LLC as follows:
Section 4.1. Title to Securities. The Stockholder is the direct owner and
holder of the respective number of shares of MTI Common Stock set forth opposite
such Stockholder's name on Schedule II hereto and has good and valid title to
such MTI Common Stock, free and clear of all liens, claims and encumbrances.
Section 4.2. Authority. The Stockholder has full right, power and authority
to contribute, transfer, assign and convey to ev3 LLC the full legal and
beneficial ownership in the MTI Common Stock to be surrendered by such
Stockholder pursuant to this Agreement and to consummate the transactions
contemplated herein. This Agreement has been duly and validly executed and
delivered by the Stockholder and is a legal, valid and binding obligation of
such Stockholder enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditor's rights generally or by general
principles of equity. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby nor compliance with any
of the provisions hereof will (a) result in any conflict with, breach of, or
default (or give rise to any right of termination, cancellation or acceleration)
under any of the terms, conditions or provisions of any agreement or other
instrument or obligation to which such Stockholder is a party or by which such
Stockholder or any of such Stockholder's properties or assets may be bound or
(b) violate any order, writ, injunction, judgment, decree, law, statute, rule or
regulation applicable to such Stockholder or any of such Stockholder's
properties or assets. No action, consent or approval by, or filing with, any
federal, state, municipal, foreign or other court or governmental or
administrative body or agency, or any other regulatory or self-regulatory body,
is required in connection with the execution and delivery by the Stockholder of
this Agreement or the consummation by such Stockholder of the transactions
contemplated hereby.
Section 4.3. Accredited Investor.
(a) Offering Exemption. The Stockholder acknowledges that transfer of the
Common Membership Units pursuant to this Agreement has not been registered under
the Securities Act, nor registered or qualified under any state securities laws,
and that the Common Membership Units are being offered and sold pursuant to an
exemption from such registration and qualification based in part upon such
Stockholder's representations contained herein.
(b) Knowledge of Offer. The Stockholder is familiar with the business and
operations of ev3 LLC and has been given the opportunity to obtain from ev3 LLC
all information that such Stockholder has requested regarding its business plans
and prospects.
(c) Knowledge and Experience; Ability to Bear Economic Risks. The
Stockholder has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of the investment
contemplated by this Agreement, and is able to bear the economic risk of this
investment in ev3 LLC (including a complete loss of the value of the Common
Membership Units).
(d) Limitations on Disposition. The Stockholder recognizes that no public
market exists for the Common Membership Units, and none may exist in the future.
The Stockholder acknowledges that it must bear the economic risk of this
investment indefinitely unless such Stockholder's Common Membership Units are
registered pursuant to the Securities Act, or an exemption from such
registration is available, and unless the disposition of such Common Membership
Units is qualified or registered under applicable state securities laws or an
exemption from such qualification or registration is available, and that ev3 LLC
has no present intention of so registering the Common Membership Units. The
Stockholder acknowledges that there is no assurance that any exemption from the
Securities Act will be available, or, if available, that such exemption will
allow such Stockholder to transfer any or all of the Common Membership Units, in
the amounts, or at the times such Stockholder might propose. The Stockholder
acknowledges that at the present time Rule 144 promulgated under the Securities
Act by the SEC ("Rule 144") is not applicable to sales of the Common Membership
Units because such units are not registered under Section 12 of the Exchange
Act, and there is not publicly available the information concerning ev3 LLC
specified in Rule 144. The Stockholder acknowledges that ev3 LLC is not
presently under any obligation to register under Section 12 of the Exchange Act
or to make publicly available the information specified in Rule 144 and that it
may never be required to do so.
(e) Accredited Investor. The Stockholder is an "accredited investor" as
such term is defined in Rule 501(a) promulgated under the Securities Act.
Section 4.4. Capacity. The Stockholder has full power and legal right to
execute and deliver this Agreement and to perform such Stockholder's obligations
hereunder.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF MTI
MTI represents and warrants to the Company, ev3 LLC and each of the
Stockholders as follows:
Section 5.1. Organization. MTI is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
Section 5.2. Authority. The Board of Directors of MTI, including the
Special Independent Committee, has authorized the execution, delivery and
performance of this Agreement and the transactions contemplated hereby. No other
corporate action is necessary to authorize such execution, delivery and
performance, and upon such execution and delivery, this Agreement shall
constitute a valid and binding obligation of MTI, enforceable against MTI in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditor's rights generally or by general principles of equity.
Section 5.3. Takeover Statute; Rights Agreement. MTI has taken all
necessary actions such that the provisions of Section 203 of the DGCL do not and
will not apply to (i) this Agreement or the Contribution or (ii) the
contribution, if any, on or following the Closing Date, of the MTI Shares by ev3
LLC to Micro Investment, LLC, a Delaware limited liability company ("MI LLC")
(as contemplated by Section 6.5 below), which will be a wholly owned subsidiary
of the Company following the Initial Public Offering. This Agreement shall
constitute an "agreement," "transaction" and "understanding" within the meaning
of Section 1(a)(iii) of the Rights Agreement. The Board of Directors of MTI has
approved this Agreement and the transactions contemplated hereby as contemplated
by Section 1(a)(iii) of the Rights Agreement. As a result, as a consequence of
this Agreement and the transactions contemplated hereby, (i) each of the
Company, ev3 LLC, the Stockholders and MI LLC shall not be an "Acquiring Person"
within the meaning of the Rights Agreement, (ii) a "Triggering Event" (as
defined in the Rights Agreement) shall not have occurred and (iii) the Rights
(as defined in the Rights Agreement) shall not separate from the MTI Common
Stock as a result of any of the transactions contemplated hereby.
ARTICLE VI.
COVENANTS OF THE PARTIES
Section 6.1. Further Assurances. From and after the Closing Date, each
Stockholder will execute and deliver, or cause to be executed and delivered,
such additional or further transfers, assignments, endorsements and other
instruments as ev3 LLC may reasonably request for the purpose of effectively
carrying out the transfer of the MTI Shares and the other transactions
contemplated by this Agreement.
Section 6.2. Takeover Statute. If any Takeover Statute shall become
applicable to the transactions contemplated hereby, including, without
limitation, any takeover provision under the laws of the State of Delaware, the
Company, ev3 LLC, MTI and the members of the Boards of Directors or Board of
Managers, as the case may be, of the Company, ev3 LLC and MTI, as necessary,
shall grant such approvals and take such actions as are necessary so that the
transactions contemplated hereby may be consummated as promptly as practicable
on the terms contemplated hereby and otherwise act to eliminate or minimize the
effects of such statue or regulation on the transactions contemplated hereby.
Section 6.3. Rights Agreement Inapplicable. If the transactions
contemplated hereby, including, without limitation, the Contribution, the
Exchange and the contribution, if any, on or following the Closing Date of the
MTI Shares to MI LLC, would (a) result in the occurrence of a "Triggering Event"
under the Rights Agreement, (b) cause the Company, ev3 LLC, any Stockholder or
MI LLC to become an "Acquiring Person" as defined in the Rights Agreement or (c)
otherwise cause the exercise of any "Right" issued pursuant to the Rights
Agreement or the issuance or exercise of any "Rights Certificate" under the
Rights Agreement, MTI will promptly cause the Rights Agreement to be duly
amended to prevent any such characterization.
Section 6.4. HSR Act. To the extent required, the Company, ev3 LLC, MTI
and/or the Stockholders agree to make an appropriate filing of a Notification
and Report Form pursuant to the HSR Act with respect to the transactions
contemplated hereby as promptly as practicable and to supply as promptly as
practicable any additional information and documentary material that may be
requested pursuant to the HSR Act and to take all other actions necessary to
cause the expiration or termination of the applicable waiting periods under the
HSR Act as soon as practicable. ev3 LLC shall be responsible for any and all
costs and expenses incurred by the Stockholders in connection with any such HSR
Act filings.
Section 6.5. Transfer of MTI Common Stock to MI LLC. MTI acknowledges that
following the IPO Closing Date, ev3 LLC may, but is not obligated to, transfer
some or all of the MTI Shares to MI LLC. If reasonably requested by ev3 LLC, MTI
shall, in addition to its obligations pursuant to Sections 6.2 and 6.3 above,
execute and deliver, or cause to be executed and delivered, such approvals or
documents as ev3 LLC may reasonably request for the purpose of effectively
carrying out the transfer of the MTI Common Stock to MI LLC.
ARTICLE VII.
CONDITIONS TO CLOSING
The obligations of ev3 LLC and each of the Stockholders to effect the
Contribution and the Exchange on the Closing Date shall be subject to the
satisfaction, prior thereto or concurrently therewith, or waiver, of the
following conditions:
Section 7.1. Injunction. No statute, rule, regulation, executive order,
decree or ruling shall have been adopted or promulgated, and no temporary
restraining order, preliminary or permanent injunction or other order issued by
a court or other U.S. or foreign governmental authority of competent
jurisdiction shall be in effect, having the effect of making the Contribution,
the Exchange and/or the Initial Public Offering, illegal or otherwise
prohibiting consummation of the transactions contemplated by this Agreement.
Section 7.2. HSR Act. The waiting period (and any extension thereof)
applicable to the transactions contemplated by this Agreement and/or the Initial
Public Offering under the HSR Act shall have been terminated or shall have
expired.
ARTICLE VIII.
TERMINATION
Section 8.1. Termination.
(a) Mutual Consent. This Agreement may be terminated with the mutual
written consent of ev3 LLC, the Company and each Stockholder.
(b) Outside Date. Unless otherwise agreed by ev3 LLC and the Stockholders,
this Agreement may be terminated by ev3 LLC or the Stockholders (jointly and not
severally) in the event that the Initial Public Offering shall not have occurred
on or before September 30, 2005.
Section 8.2. Effect of Termination. If this Agreement is terminated
pursuant to Section 8.1, ev3 LLC shall remain obligated to reimburse each
Stockholder for the expenses described in Section 9.5 of this Agreement. In the
event this Agreement shall be terminated, the parties agree to take any and all
actions and to file any and all instruments and documents as shall be necessary,
appropriate or, upon the reasonable request of any party hereto, desirable, in
order to restore all parties, including the Stockholders, to their respective
rights and obligations as if this Agreement had not been executed.
ARTICLE IX.
MISCELLANEOUS PROVISIONS
Section 9.1. Terms Defined. As used in this Agreement, the following terms
have the respective meaning set forth below:
(a) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(b) "HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended, and the rules and regulations promulgated thereunder.
(c) "Initial Public Offering" shall mean the underwritten initial public
offering pursuant to an effective Registration Statement under the Securities
Act covering the offer and sale of the Company Common Stock to the public
generally at a price to the public which places upon the Company a value
(calculated by multiplying the number of shares of common stock outstanding on a
fully diluted basis immediately prior to such offering by the per share initial
public offering price (before giving effect to the underwriting discount), as
set forth on the cover of the final prospectus for such offering) of at least
$150 million and in which the net proceeds to the Company are not less than $40
million and as a result of which the shares of Company Common Stock are
designated for trading on the New York Stock Exchange, the American Stock
Exchange or the NASDAQ National Market.
(d) "Person" shall mean an individual, partnership, joint-stock company,
corporation, limited liability company, trust or unincorporated organization,
and a government or agency or political subdivision thereof.
(e) "Preliminary Prospectus" shall mean the first prospectus filed with the
SEC which contains on the cover thereof (i) a range of estimated initial public
offering prices in connection with the Initial Public Offering and (ii) the
ratio to be applied in connection with the Reverse Split.
(f) "Rights Agreement" shall mean the Rights Agreement, dated as of June 3,
1999, between MTI and U.S. Stock Transfer Corporation, as Rights Agent, as
amended.
(g) "SEC" shall mean the Securities and Exchange Commission.
(h) "Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
(i) "Special Independent Committee" shall mean the special independent
committee of the Board of Directors of MTI consisting of Xxxxxxx X. Xxxxxxx and
Xxxxxx Xxxxxxx.
(j) "Takeover Statute" shall mean any corporate takeover provision under
laws of the State of Delaware or any other state or federal "fair price,"
"moratorium,"
"control share acquisition" or other similar antitakeover statute or regulation.
Section 9.2. Notices. All communications under this Agreement shall be in
writing and shall be delivered by hand or facsimile or mailed by overnight
courier or by registered mail or certified mail, postage prepaid:
(a) if to the Stockholders, at the address or facsimile number listed on
Schedule I hereto, or at such other address or facsimile number as may have been
furnished to the Company ev3 LLC, the other Stockholders and MTI in writing;
(b) if to the Company, at 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000
(facsimile: (000) 000-0000), marked for attention of President, or at such other
address or facsimile as the Company may have furnished in writing to each of the
Stockholders and MTI;
(c) if to ev3 LLC, at 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000
(facsimile: (000) 000-0000), marked for attention of President, or at such other
address or facsimile as ev3 LLC may have furnished in writing to each of the
Stockholders and MTI; and
(d) if to MTI, at 2 Goodyear, Xxxxxx, Xxxxxxxxxx 00000 (facsimile: (949)
465-1743), marked for attention of President, or at such other address or
facsimile number as MTI may have furnished in writing to ev3 LLC, the Company
and each of the Stockholders.
Any notice so addressed shall be deemed to be given: if delivered by hand or
facsimile, on the date of such delivery, if a business day and delivered during
regular business hours, otherwise the first business day thereafter; if mailed
by courier, on the first business day following the date of such mailing; and if
mailed by registered or certified mail, on the third business day after the date
of such mailing.
Section 9.3. Amendments. The terms, provisions and conditions of this
Agreement may not be changed, modified, waived or amended in any manner except
by an instrument in writing duly executed by the Company, ev3 LLC and each of
the Stockholders, and, solely with respect to Articles V, VI and IX, MTI.
Section 9.4. Assignment; Parties in Interest.
(a) Assignment. Neither this Agreement nor any of the rights, duties, or
obligations of any party hereunder may be assigned or delegated by any party
hereto except with the prior written consent of the Company, ev3 LLC and each of
the Stockholders.
(b) Parties in Interest. This Agreement shall not confer any rights or
remedies upon any Person other than the parties hereto and their respective
permitted successors and assigns.
Section 9.5. Expenses and Taxes.
(a) Whether or not the Closing occurs, ev3 LLC agrees to pay the
Stockholder's and MTI's out-of-pocket expenses, including the reasonable fees
and disbursements of one counsel selected by the Stockholders and counsel
selected by MTI, incurred in connection with the negotiation, preparation,
execution and delivery of this Agreement and the other instruments and
agreements entered into pursuant to this Agreement or such other agreements, and
any amendments to the same.
(b) ev3 LLC will pay, and save and hold each Stockholder harmless from any
and all liabilities (including interest and penalties) with respect to, or
resulting from any delay or failure in paying, stamp and other taxes (other than
income taxes), if any, which may be payable or determined to be payable as a
result of the transactions contemplated by this Agreement.
Section 9.6. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof,
supersedes and is in full substitution for any and all prior agreements and
understandings among them relating to such subject matter, and no party shall be
liable or bound to the other party hereto in any manner with respect to such
subject matter by any warranties, representations, indemnities, covenants or
agreements except as specifically set forth herein. The Schedules to this
Agreement are incorporated herein and made a part hereof and are an integral
part of this Agreement.
Section 9.7. Descriptive Headings. The descriptive headings of the several
sections (including subsections) of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 9.8. Counterparts. For the convenience of the parties, any number
of counterparts of this Agreement may be executed by any one or more parties
hereto (including by facsimile), and each such executed counterpart shall be,
and shall be deemed to be, an original, but all of which shall constitute, and
shall be deemed to constitute, in the aggregate but one and the same instrument.
Section 9.9. Governing Law. This Agreement and the legal relations among
the parties hereto shall be governed by and construed in accordance with the
laws of the State of Delaware, applicable to contracts made and performed
therein.
Section 9.10. Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any party.
Section 9.11. Severability. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument. Furthermore, in lieu of any such
invalid, illegal or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar in
terms to such invalid, illegal or unenforceable provision as may be possible and
be valid, legal and enforceable.
Section 9.12. Specific Performance. Without limiting or waiving in any
respect any rights or remedies of any party under this Agreement now or
hereinafter existing at law or in equity or by statute, each of the parties
hereto shall be entitled to seek specific performance of the obligations to be
performed by the other in accordance with the provisions of this Agreement.
Section 9.13. Survival of Provisions. The respective representations,
warranties, covenants and agreements of each of the parties to this Agreement
shall survive the execution of this Agreement and the consummation of the
transactions contemplated by this Agreement.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
ev3 LLC
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
ev3 Inc.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
WARBURG, XXXXXX EQUITY PARTNERS, L.P.
By: Warburg Pincus Partners LLC,
its General Partner
By: Warburg Pincus & Co.,
its Managing Member
By: /s/ Xxxxxxxxx X. Xxxxxxxxxx
---------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
Title: Partner
WARBURG, XXXXXX NETHERLANDS EQUITY
PARTNERS I, C.V.
By: Warburg Pincus Partners LLC,
its General Partner
By: Warburg Pincus & Co.,
its Managing Member
By: /s/ Xxxxxxxxx X. Xxxxxxxxxx
---------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
Title: Partner
WARBURG, XXXXXX NETHERLANDS EQUITY
PARTNERS II, C.V.
By: Warburg Pincus Partners LLC,
its General Partner
By: Warburg Pincus & Co.,
its Managing Member
By: /s/ Xxxxxxxxx X. Xxxxxxxxxx
---------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
Title: Partner
WARBURG, XXXXXX NETHERLANDS EQUITY
PARTNERS III, C.V.
By: Warburg Pincus Partners LLC,
its General Partner
By: Warburg Pincus & Co.,
its Managing Member
By: /s/ Xxxxxxxxx X. Xxxxxxxxxx
---------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
Title: Partner
VERTICAL FUND I, L.P.
By: Vertical Group, L.P.,
General Partner
By: /s/ Xxxx X. Xxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxx
Title: General Partner
VERTICAL FUND II, L.P.
By: Vertical Group, L.P.,
General Partner
By: /s/ Xxxx X. Xxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxx
Title: General Partner
MICRO THERAPEUTICS, INC.
By: /s/ Xxxxxx X. Xxxxxx III
---------------------------
Name: Xxxxxx X. Xxxxxx III
Title: President and CEO
