**Exhibit10.1**

 

 

ev3 Inc.11,765,000 Shares

 

Common Stock

 

UNDERWRITINGAGREEMENT

 

dated June 16,2005

 

Piper Jaffray &Co.

Banc ofAmerica Securities LLC

 

 

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UNDERWRITINGAGREEMENT

 

June 16, 2005

 

PIPER JAFFRAY & CO.

 

BANC OF AMERICA SECURITIESLLC 

AsRepresentatives of the several Underwriters

c/o PIPER JAFFRAY &CO.

800 Nicollet Mall

Minneapolis, MN 55402

 

Ladies and Gentlemen:

 

*Introductory.*  ev3 Inc., a Delaware corporation (the “Company”),proposes to issue and sell to the several underwriters named in Schedule A(the “Underwriters”) an aggregate of 11,765,000 shares (the “Firm Common Shares”)of its Common Stock, par value $0.01 per share (the “Common Stock”).  In addition, the Company has granted to theUnderwriters an option to purchase up to an additional 1,728,850 shares ofCommon Stock and the stockholder of the Company named in Schedule B (inhis individual capacity and not in his capacity as a director of the Company)(the “Selling Stockholder”) has granted to the Underwriters an option to purchaseup to an additional 35,900 shares of Common Stock, all as provided in Section 2.  The additional 1,728,850 shares that may besold by the Company and the additional 35,900 shares that may be sold by theSelling Stockholder pursuant to such option are collectively called the “OptionalCommon Shares”.  The Firm Common Sharesand, if and to the extent such option is exercised, the Optional Common Sharesare collectively called the “Common Shares”. Piper Jaffray & Co. (“Piper”) and Banc of America SecuritiesLLC (“BAS”) have agreed to act as representatives of the several Underwriters(in such capacity, the “Representatives”) in connection with the offering andsale of the Common Shares.

 

The Company and the Underwriters agree thatup to 588,250 of the Firm Common Shares to be purchased by the Underwriters(the “Directed Shares”) shall be reserved for sale by the Underwriters tocertain eligible directors, officers and employees of the Company and personshaving business relationships with the Company (collectively, the “Participants”),as part of the distribution of the Common Shares by the Underwriters (the “DirectedShare Program”) subject to the terms of this Agreement, the applicable rules,regulations and interpretations of the NASD, Inc. (the “NASD”) and allother applicable laws, rules and regulations.  One of the Underwriters (the “DesignatedUnderwriter”) shall be selected to process the sales to the Participants underthe Directed Share Program.  To theextent that such Directed Shares are not orally confirmed for purchase by theParticipants by the end of the first business day after the date of thisAgreement, such Directed Shares may be offered to the public as part of thepublic offering contemplated hereby.

 

The Company has prepared and filed with theSecurities and Exchange Commission (the “Commission”) a registration statementon Form S-1 (File No. 333-123851), which contains a

 

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form of prospectus to be used in connectionwith the public offering and sale of the Common Shares.  Such registration statement, as amended,including the financial statements, exhibits and schedules thereto, in the formin which it was declared effective by the Commission under the Securities Actof 1933, as amended, and the rules and regulations promulgated thereunder(collectively, the “Securities Act”), including any information deemed to be apart thereof at the time of effectiveness pursuant to Rule 430A under theSecurities Act, is called the “Registration Statement.”  Any registration statement filed by the Companypursuant to Rule 462(b) under the Securities Act is called the “Rule 462(b) RegistrationStatement”, and from and after the date and time of filing of the Rule 462(b) RegistrationStatement the term “Registration Statement” shall include the Rule 462(b) RegistrationStatement.  Such prospectus, in the formfirst used by the Underwriters to confirm sales of the Common Shares, is calledthe “Prospectus”.  The preliminaryprospectus, dated as of May 27, 2005, included in the RegistrationStatement before it became effective under the Securities Act and anyprospectus filed with the Commission by the Company with the consent of theUnderwriters pursuant to Rule 424(a) under the Securities Act ishereinafter called the “Preliminary Prospectus.”  All references in this Agreement to theRegistration Statement, the Rule 462(b) Registration Statement, thePreliminary Prospectus or the Prospectus, or any amendments or supplements toany of the foregoing, shall include any copy thereof filed with the Commissionpursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”).

 

The Company, ev3 LLC, a Delaware limitedliability company (“ev3 LLC”), and the Selling Stockholder hereby confirm theirrespective agreements with the Underwriters as follows:

 

# Section 1.  *Representationsand Warranties.*

#  

## A.  *Representations and Warranties of the Company and ev3LLC. *The Company and ev3 LLChereby jointly and severally represent, warrant and covenant to eachUnderwriter as follows:

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### (a)  *Compliancewith Registration Requirements.* The Registration Statement has been declared effective by the Commissionunder the Securities Act and any Rule 462(b) Registration Statementis effective.  The Company has compliedwith all requests of the Commission for additional or supplementalinformation.  No stop order suspendingthe effectiveness of the Registration Statement or any Rule 462(b) RegistrationStatement is in effect and no proceedings for such purpose have been institutedor are pending or, to the best knowledge of the Company, are contemplated orthreatened by the Commission.  ThePreliminary Prospectus when filed with the Commission complied, and theProspectus when filed with the Commission will comply, in all material respectswith the Securities Act and, if filed by electronic transmission pursuant toEDGAR (except as may be permitted by Regulation S-T under the Securities Act),was or will be, as the case may be, identical to the copy thereof delivered tothe Underwriters for use in connection with the offer and sale of the CommonShares.  The Registration Statementcomplies, and any Rule 462(b)

 

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### Registration Statement and any post-effectiveamendments or supplements to the Registration Statement, when they becomeeffective and at all times during the Prospectus Delivery Period, will comply,in all material respects with the requirements of the Securities Act.  The Registration Statement did not contain,and any Rule 462(b) Registration Statement or any post-effectiveamendments thereto will not contain, as of their respective effective dates andat all times during the Prospectus Delivery Period, an untrue statement of amaterial fact or omit to state a material fact required to be stated therein ornecessary to make the statements therein not misleading, except in each case ifthe Company notifies the Representatives in writing of an event or condition asa result of which it is necessary to amend or supplement the RegistrationStatement in order to make the statements therein not misleading and theCompany so amends or supplements the Registration Statement in compliance withthe terms of this Agreement.  TheProspectus (including any Prospectus wrapper), as amended or supplemented, asof its date and at all times during the Prospectus Delivery Period (as definedbelow), did not and will not contain any untrue statement of a material fact oromit to state a material fact necessary in order to make the statementstherein, in the light of the circumstances under which they were made, notmisleading, except in each case if the Company notifies the Representatives inwriting of an event or condition as a result of which it is necessary to amendor supplement the Prospectus in order to make the statements therein, in thelight of the circumstances under which they were made, not misleading and theCompany so amends or supplements the Prospectus in compliance with the terms ofthis Agreement.  The representations andwarranties set forth in the three immediately preceding sentences do not applyto statements in or omissions from the Registration Statement, any Rule 462(b) RegistrationStatement, or any post-effective amendment thereto, or the Prospectus(including any Prospectus wrapper), or any amendments or supplements thereto,made in reliance upon and in conformity with information relating to anyUnderwriter furnished to the Company in writing by the Representativesexpressly for use therein.  There are nocontracts or other documents of ev3 LLC, the Company or their respectivesubsidiaries required to be described in the Prospectus or to be filed asexhibits to the Registration Statement which have not been described or filedas required.

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### (b)  *OfferingMaterials Furnished to Underwriters.* The Company has delivered to the Representatives two complete copies ofthe manually signed Registration Statement and of each consent and certificateof experts filed as a part thereof, and conformed copies of the RegistrationStatement (without exhibits) and copies of the Preliminary Prospectus and theProspectus, as amended or supplemented, in such quantities and at such placesas the Representatives have reasonably requested for each of the Underwriters.

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### (c)  *Distributionof Offering Material By the Company.* The Company has not distributed and will not distribute, prior to thelater of the Second Closing Date

 

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### (as defined below) and the completion of theProspectus Delivery Period (as defined below), any offering material inconnection with the offering and sale of the Common Shares other than thePreliminary Prospectus, the Prospectus or the Registration Statement.

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### (d)  *TheUnderwriting Agreement.*  ThisAgreement has been duly authorized, executed and delivered by, and is a validand binding agreement of, ev3 LLC and the Company, enforceable against each ofev3 LLC and the Company in accordance with its terms, except as may be limitedby bankruptcy, insolvency, reorganization, moratorium or similar laws affectingthe rights and remedies of creditors generally and by the effect of generalprinciples of equity and except that any rights to indemnity and contributionpursuant to Sections 8 and 9 hereof may be limited by federal and statesecurities laws and public policy considerations.

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### (e)  *Authorizationof the Common Shares.*  TheCommon Shares to be purchased by the Underwriters from the Company have beenduly authorized for issuance and sale pursuant to this Agreement and, whenissued and delivered by the Company against payment therefor pursuant to thisAgreement, will be validly issued, fully paid and nonassessable.

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### (f)  *NoApplicable Registration or Other Similar Rights.*  There are no persons with registration orother similar rights to have any equity or debt securities registered for saleunder the Registration Statement or included in the offering contemplated bythis Agreement, other than the Selling Stockholder with respect to the OptionalCommon Shares included in the Registration Statement, except for such rights ashave been duly waived or have been described in the Prospectus.

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### (g)  *NoMaterial Adverse Change.* Except as otherwise disclosed in the Prospectus, subsequent to therespective dates as of which information is given in the Prospectus: (i) therehas been no material adverse change, or any development that could reasonablybe expected to result in a material adverse change, in the condition, financialor otherwise, or in the earnings, business, operations or prospects, whether ornot arising from transactions in the ordinary course of business, of ev3 LLC,the Company and their respective subsidiaries, considered as one entity (anysuch change is called a “Material Adverse Change”); (ii) ev3 LLC, theCompany and their respective subsidiaries, considered as one entity, have notincurred any material liability or obligation, indirect, direct or contingent,not in the ordinary course of business nor entered into any materialtransaction or agreement not in the ordinary course of business; and (iii) therehas been no dividend or distribution of any kind declared, paid or made by ev3LLC or the Company or, except for dividends paid to ev3 LLC, the Company or anyof their respective 

 

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### subsidiaries, any of their respectivesubsidiaries on any class of their respective capital stock or repurchase orredemption by the Company or any of its subsidiaries of any class of theirrespective capital stock.

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### (h)  *IndependentAccountants.* PricewaterhouseCoopers LLP and Ernst & Young LLP, which haveexpressed their respective opinions with respect to certain portions (asindicated therein) of the combined consolidated financial statements (whichterm as used in this Agreement includes the related notes thereto) filed withthe Commission as a part of the Registration Statement and included in theProspectus, are each an independent registered public accounting firm asrequired by the Securities Act.

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### (i)  *Preparationof the Financial Statements.* The combined consolidated financial statements filed with the Commissionas a part of the Registration Statement and included in the Prospectus presentfairly the consolidated financial position of ev3 LLC and its subsidiaries asof and at the dates indicated and the results of their operations and cashflows for the periods specified.  Thefinancial statement schedule included in the Registration Statementpresents fairly the information required to be stated therein.  Such combined consolidated financialstatements and financial statement schedule have been prepared inconformity with generally accepted accounting principles as applied in theUnited States applied on a consistent basis throughout the periods involved,except as may be expressly stated in the related notes thereto.  No other financial statements or supportingschedules are required to be included in the Registration Statement.  The combined consolidated financial data setforth in the Prospectus under the captions “Prospectus Summary - SummaryCombined Consolidated Financial Data,” “Selected Combined ConsolidatedFinancial Data” and “Capitalization” fairly present the information set forththerein on a basis consistent with that of the combined consolidated financialstatements contained in the Registration Statement.

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### (j)  *Incorporation and Good Standing of ev3 LLC, theCompany and their Subsidiaries.* Each of ev3 LLC, the Company and each of their respective subsidiarieshas been duly formed, incorporated or organized and is validly existing as alimited liability company, corporation or other entity in good standing underthe laws of the jurisdiction of its formation, incorporation or organizationand has limited liability company, corporate or other power and authority toown, lease and operate its properties and to conduct its business as it iscurrently conducted and as described in the Prospectus and, in the case of ev3LLC and the Company, to enter into and perform their obligations under thisAgreement.  Each of ev3 LLC, the Companyand each of their respective subsidiaries is duly qualified as a foreignlimited liability company or corporation to transact business and is in goodstanding in each jurisdiction in which such qualification is required, whetherby reason of the ownership or leasing of property or the conduct of business,except for such jurisdictions where the failure to

 

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### so qualify or to be in good standing wouldnot, individually or in the aggregate, result in a Material AdverseChange.  All of the issued andoutstanding capital stock of each subsidiary of ev3 LLC and the Company hasbeen duly authorized and validly issued, is fully paid and nonassessable and isowned by ev3 LLC or the Company, directly or through their respectivesubsidiaries, free and clear of any security interest, mortgage, pledge, lien,encumbrance or claim, except for such security interests, mortgages, pledges,liens, encumbrances or claims (1) which would not individually or in theaggregate result in a Material Adverse Change or (2) pursuant to thatcertain Loan and Security Agreement, dated as of May 6, 2005, betweenSilicon Valley Bank and Micro Therapeutics, Inc., a Delaware corporation (“MTI”);provided, however, with respect to MTI, either ev3 LLC or theCompany (i) directly owns 9,704,819 shares of the common stock of MTI and (ii) indirectlyowns 24,336,759 shares of the common stock of MTI.  Neither ev3 LLC nor the Company owns orcontrols, directly or indirectly, any corporation, association or other entityother than the subsidiaries listed in Exhibit 21.1 to the RegistrationStatement, except for any such corporation, association or other entity whichis not a “significant subsidiary” as defined by Rule 1-02 of RegulationS-X under the Securities Act.

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### (k)  *Capitalization and Other Capital Stock Matters.*  (i) The authorized, issued andoutstanding membership units of ev3 LLC is as set forth in the Prospectus underthe column “Actual ev3 LLC” under the caption “Capitalization”; (ii) theauthorized, issued and outstanding Common Stock of the Company after givingeffect to the merger of ev3 LLC with and into the Company (the “Merger”) is asset forth in the Prospectus under the column “Pro Forma for MTI ShareContribution and Merger ev3 Inc.” under the caption “Capitalization”; (iii) theauthorized, issued and outstanding Common Stock of the Company after givingeffect to the “reorganization transactions” (as defined in the Prospectus) andthe reverse stock split (as set forth in the Prospectus) is as set forth in theProspectus under the column “Pro Forma for Reorganization Transactions andReverse Stock Split ev3 Inc.” under the caption “Capitalization”; and (iv) theauthorized, issued and outstanding Common Stock of the Company after givingeffect to the “reorganization transactions” (as defined in the Prospectus), thereverse stock split (as set forth in the Prospectus) and the sale of the FirmCommon Shares is as set forth in the Prospectus under the column “Pro Forma AsAdjusted ev3 Inc.” under the caption “Capitalization”, in each case, other thanfor subsequent issuances, if any, pursuant to employee benefit plans describedin the Prospectus or upon exercise of outstanding convertible securities,options or warrants described in the Prospectus.  The Common Stock (including the CommonShares) conforms in all material respects to the description thereof containedin the Prospectus.  All of the issued andoutstanding shares of Common Stock have been duly authorized and validlyissued, are fully paid and nonassessable and have been issued in compliancewith federal and state securities laws as of the First Closing Date and as ofthe

 

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### Second Closing Date, if applicable.  As of the First Closing Date and as of theSecond Closing Date, if applicable, all of the issued and outstanding shares ofCommon Stock owned by the Selling Stockholder will have been duly authorizedand validly issued, and will be fully paid and nonassessable and have beenissued in compliance with federal and state securities laws.  None of the outstanding membership units ofev3 LLC or shares of Common Stock were issued in violation of any preemptiverights, rights of first refusal or other similar rights to subscribe for orpurchase securities of ev3 LLC or the Company which were not properlywaived.  Except as set forth in thatcertain Option, Contribution and Exchange Agreement, dated as of August 29,2003, by and among ev3 LLC and certain of its members party thereto and in theHolders Agreement, dated as of August 29, 2003, among the investors namedtherein and the Company, there are no authorized or outstanding options,warrants, preemptive rights, rights of first refusal or other rights topurchase, or equity or debt securities convertible into or exchangeable or exercisablefor, any capital stock of the Company or any of its subsidiaries other thanthose described in the Prospectus or issued or granted after the datethereof.  The description of ev3 LLC’sand the Company’s stock option, stock bonus and other stock plans orarrangements, and the options or other rights granted thereunder, set forth inthe Prospectus accurately and fairly presents in all material respects theinformation required to be shown with respect to such plans, arrangements,options and rights.

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### (l)  *Quotation.* The Common Shares have been approved for inclusion on the NASDAQNational Market, subject only to official notice of issuance.

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### (m)  *Non-Contravention of Existing Instruments; No FurtherAuthorizations or Approvals Required.*  Neither ev3 LLC, the Company nor any of theirrespective subsidiaries is in violation of its charter, by-laws or otherorganizational documents or is in default (or, with the giving of notice orlapse of time, would be in default) (“Default”) under any indenture, mortgage,loan or credit agreement, note, contract, lease or other instrument to whichev3 LLC, the Company or any of their respective subsidiaries is a party or bywhich any of them may be bound, or to which any of the property or assets ofev3 LLC, the Company or any of their respective subsidiaries is subject (each,an “Existing Instrument”), except for such Defaults as would not, individuallyor in the aggregate, result in a Material Adverse Change.  Each of ev3 LLC’s and the Company’sexecution, delivery and performance of this Agreement and consummation of thetransactions contemplated hereby and by the Prospectus (i) have been dulyauthorized by all necessary corporate action and will not result in anyviolation of the provisions of, with respect to ev3 LLC, its operatingagreement or other organizational documents, and with respect to the Company,its charter or by-laws, or the organizational documents of any of theirsubsidiaries, (ii) will not conflict with or constitute a breach of, orDefault under, or result in the creation or imposition of any lien, charge orencumbrance upon any property or assets of ev3 LLC, the Company or any of theirrespective subsidiaries pursuant to, or require

 

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### the consent of any other party to, anyExisting Instrument, except for such consents which have been obtained and forsuch conflicts, breaches, Defaults, liens, charges or encumbrances as wouldnot, individually or in the aggregate, result in a Material Adverse Change and (iii) willnot result in any violation of any law, administrative regulation oradministrative or court decree applicable to ev3 LLC, the Company or any oftheir respective subsidiaries except for such violations as would not,individually or in the aggregate, result in a Material Adverse Change.  No consent, approval, authorization or otherorder of, or registration or filing with, any court or other governmental orregulatory authority or agency, is required for ev3 LLC’s or the Company’sexecution, delivery and performance of this Agreement and consummation of thetransactions contemplated hereby and by the Prospectus, except (i) such ashave been obtained or made by ev3 LLC and the Company and are in full force andeffect under the Securities Act and applicable state securities or blue skylaws and (ii) for the filing of the Certificate of Merger contemplated bythe Agreement and Plan of Merger, dated as of April 4, 2005 (filed as Exhibit 2.1to the Registration Statement), which Certificate of Merger will be filed on orbefore the First Closing Date.

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### (n)  *No Material Actions or Proceedings.*  Except as otherwise disclosed in theProspectus, there are no legal or governmental actions, suits or proceedings(including, without limitation, any actions, suits or proceedings by the Foodand Drug Administration (the “FDA”)) pending or, to the best of ev3 LLC’s andthe Company’s knowledge, threatened (i) against ev3 LLC, the Company orany of their respective subsidiaries, (ii) which has as the subject thereofany officer or director of, or property owned or leased by, ev3 LLC or theCompany or any of their respective subsidiaries or (iii) relating toenvironmental or discrimination matters, where in any such case (A) thereis a reasonable possibility that such action, suit or proceeding would bedetermined adversely to ev3 LLC, the Company or such subsidiary and (B) anysuch action, suit or proceeding, if so determined adversely, would reasonablybe expected to result in a Material Adverse Change or materially and adverselyaffect the Company’s ability to consummate the transactions contemplated bythis Agreement.  No labor dispute withthe employees of ev3 LLC, the Company or any of any of their respectivesubsidiaries exists or, to the best of ev3 LLC’s and the Company’s knowledge,is threatened or imminent which would, individually or in the aggregate, bereasonably expected to result in a Material Adverse Change.

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### (o)  *Intellectual Property Rights.*  Each of ev3 LLC, the Company and theirrespective subsidiaries own or possess sufficient trademarks, trade names,patent rights, copyrights, domain names, licenses, approvals, trade secrets andother similar rights (collectively, “Intellectual Property Rights”) reasonablynecessary to conduct their businesses as now conducted, except as such failureto own, possess or acquire such rights would not have a Material Adverse Changeand the expected expiration of any of such Intellectual Property Rights wouldnot result in a Material Adverse

 

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### Change. Except as disclosed in the Prospectus, none of ev3 LLC, the Company orany of their respective subsidiaries has received any notice of infringement orconflict with asserted Intellectual Property Rights of others, which infringementor conflict, if the subject of an unfavorable decision, would result in aMaterial Adverse Change.  None of ev3LLC, the Company or any of their respective subsidiaries is a party to or boundby any options, licenses or agreements with respect to the IntellectualProperty Rights of any other person or entity that are required to be describedin the Prospectus and are not described in all material respects.  None of the Intellectual Property Rightsowned by ev3 LLC, the Company or any of their respective subsidiaries have beenobtained or are being used by ev3 LLC, the Company or any of their respectivesubsidiaries in violation of any contractual obligation binding on ev3 LLC, theCompany, any of their respective subsidiaries or, to ev3 LLC’s or the Company’sknowledge, any of their respective officers, directors or employees orotherwise in violation of the rights of any persons, except where suchviolations would not, individually or in the aggregate, result in a MaterialAdverse Change.

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### (p)  *All Necessary Permits, etc.*  Each of ev3 LLC, the Company and each oftheir respective subsidiaries possess such valid and current certificates,authorizations or permits issued by the appropriate state, federal or foreignregulatory agencies or bodies necessary to conduct their respective businesses,except where the failure to so possess would not, individually or in theaggregate, result in a Material Adverse Change and none of ev3 LLC, the Companyor any of their respective subsidiaries has received any notice of proceedingsrelating to the revocation or modification of, or non-compliance with, any suchcertificate, authorization or permit which, individually or in the aggregate,if the subject of an unfavorable decision, ruling or finding, would result in aMaterial Adverse Change.

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### (q)  *Title to Properties.*  ev3 LLC, the Company and each of theirrespective subsidiaries has good and marketable title to all the properties(whether real or personal) and assets reflected as owned in the financialstatements referred to in Section 1(A)(i) above, in each case freeand clear of any security interests, mortgages, liens, encumbrances, equities,claims and other defects to title, except such as are described in theProspectus or would not, individually or in the aggregate, be reasonablyexpected to result in a Material Adverse Change.  The real property, improvements, equipmentand personal property held under lease by ev3 LLC, the Company or anysubsidiary are held under valid and enforceable leases, with such exceptions aswould not, individually or in the aggregate, be reasonably expected to resultin a Material Adverse Change.

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### (r)  *Tax Law Compliance.*  Each of ev3 LLC, the Company and theirrespective subsidiaries have filed all necessary federal, state and foreignincome and franchise tax returns required to be filed through the date hereofand have paid all taxes

 

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### due thereon and, if due and payable, anyrelated or similar assessment, fine or penalty levied against any of them,except in each case as would not, individually or in the aggregate, result in aMaterial Adverse Change or which ev3 LLC, the Company or any such subsidiary iscontesting in good faith.  As of the FirstClosing Date and the Second Closing Date, if any, ev3 LLC, the Company andtheir respective subsidiaries will have filed all necessary federal, state andforeign income and franchise tax returns required to be filed through the FirstClosing Date and the Second Closing Date , as applicable, and have paid alltaxes due thereon and, if due and payable, any related or similar assessment,fine or penalty levied against any of them, except in each case as would not,individually or in the aggregate, result in a Material Adverse Change or whichev3 LLC, the Company or any such subsidiary is contesting in good faith.  ev3 LLC has made adequate charges, accrualsand reserves in the applicable financial statements referred to in Section 1(A)(i) abovein respect of all federal, state and foreign income and franchise taxes for allperiods as to which the tax liability of ev3 LLC, the Company or any of theirrespective subsidiaries has not been finally determined.

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### (s)  *Company Not an “Investment Company.”*  The Company is not and, after giving effectto the offering and the sale of the Common Shares and the application of theproceeds thereof as described in the Prospectus, will not be, an “investmentcompany” within the meaning of the Investment Company Act of 1940, as amended(the “Investment Company Act”).

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### (t)  *Insurance.* Each of ev3 LLC,  the Company andtheir respective subsidiaries are insured with policies in such amounts andwith such deductibles and covering such risks as are generally deemed adequateand customary for their businesses including, but not limited to, policiescovering real and personal property owned or leased by ev3 LLC, the Company ortheir respective subsidiaries against theft, damage, destruction and acts ofvandalism.  Neither ev3 LLC nor theCompany has any reason to believe that it or any of their respectivesubsidiaries will not be able (i) to renew its existing insurance coverageas and when such policies expire or (ii) to obtain comparable coveragefrom similar institutions as may be necessary or appropriate to conduct itsbusiness as now conducted and at a cost that would not result in a MaterialAdverse Change.  Neither of ev3 LLC, theCompany nor any of their respective subsidiaries has been denied any insurancecoverage which it has sought or for which it has applied.

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### (u)  *No Price Stabilization or Manipulation.*  The Company has not taken and will not take,directly or indirectly, any action designed to or that might be reasonablyexpected to cause or result in stabilization or manipulation of the price ofthe Common Stock to facilitate the sale or resale of the Common Shares.

 

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### (v)  *RelatedParty Transactions.*  There areno business relationships or related-party transactions involving ev3 LLC, theCompany or any of their respective subsidiaries or any other person required tobe described in the Prospectus which have not been described as required.

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### (w)  *Disclosure Controls and Procedures.*  The Company is aware of no reason that itsquarterly report on Form 10-Q for the quarter ended July 3, 2005would not (1) be accompanied by the certifications required to be filed orsubmitted by the Company’s chief executive officer and chief financial officerpursuant to the Sarbanes-Oxley Act of 2002 and the rules and regulations thereunderor (2) contain a statement to the effect that the Company’s principalexecutive officer and principal financial officer concluded as of the end ofthe period covered by such report that the Company’s disclosure controls andprocedures were effective such that the information relating to the Company,including its consolidated subsidiaries, required to be disclosed in theCompany’s reports filed with the Commission (i) is recorded, processed,summarized and reported within the time periods specified in the rules andforms of the Commission, and (ii) is accumulated and communicated to theCompany’s management, including its principal executive officer and principalfinancial and accounting officer, as appropriate to allow timely decisionsregarding required disclosure.

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### (x)  *No Unlawful Contributions or Other Payments.*  None of ev3 LLC, the Company, theirrespective subsidiaries or, to the best of ev3 LLC’s and the Company’sknowledge, any employee or agent of ev3 LLC, the Company or any of their respectivesubsidiaries, has made any contribution or other payment to any official of, orcandidate for, any federal, state or foreign office in violation of any law orof the character required to be disclosed in the Prospectus.

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### (y)  *Company’s Accounting System.*  Except as disclosed in the Prospectus, eachof ev3 LLC and the Company maintains a system of accounting controls sufficientto provide reasonable assurances that (i) transactions are executed inaccordance with management’s general or specific authorization; (ii) transactionsare recorded as necessary to permit preparation of financial statements of ev3LLC and the Company in conformity with generally accepted accounting principlesas applied in the United States and to maintain accountability for assets; (iii) accessto assets is permitted only in accordance with management’s general or specificauthorization; and (iv) the recorded accountability for assets is comparedwith existing assets at reasonable intervals and appropriate action is takenwith respect to any differences.

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### (z)  *Compliance with Environmental Laws.*  Except as would not, individually or in theaggregate, result in a Material Adverse Change (i) none of ev3 LLC, theCompany or any of their respective subsidiaries is in violation of any

 

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### applicable federal, state, local or foreignlaw or regulation relating to pollution or protection of human health or theenvironment (including, without limitation, ambient air, surface water, groundwater,land surface or subsurface strata) or wildlife, including without limitation,applicable laws and regulations relating to emissions, discharges, releases orthreatened releases of chemicals, pollutants, contaminants, wastes, toxicsubstances, hazardous substances, petroleum and petroleum products(collectively, “Materials of Environmental Concern”), or otherwise relating tothe manufacture, processing, distribution, use, treatment, storage, disposal,transport or handling of Materials of Environment Concern (collectively, “EnvironmentalLaws”), which violation includes, but is not limited to, noncompliance with anyapplicable permits or other governmental authorizations required for theoperation of the business of ev3 LLC, the Company or their respectivesubsidiaries under applicable Environmental Laws, nor has ev3 LLC, the Companyor any of their respective subsidiaries received any written communication,whether from a governmental authority, citizens group, employee or otherwise,that alleges that ev3 LLC, the Company or any of their respective subsidiariesis in violation of any applicable Environmental Law; (ii) there is noclaim, action or cause of action filed with a court or governmental authority,no investigation with respect to which ev3 LLC or the Company has receivedwritten notice, and no written notice by any person or entity allegingpotential liability for investigatory costs, cleanup costs, governmentalresponses costs, natural resources damages, property damages, personalinjuries, attorneys’ fees or penalties arising out of, based on or resultingfrom the presence, or release into the environment, of any Material ofEnvironmental Concern at any location owned, leased or operated by ev3 LLC, theCompany or any of their respective subsidiaries, now or in the past(collectively, “Environmental Claims”), pending or, to the best of ev3 LLC’s orthe Company’s knowledge, threatened against ev3 LLC, the Company or any oftheir respective subsidiaries or any person or entity whose liability for anyEnvironmental Claim ev3 LLC, the Company or any of their respectivesubsidiaries has retained or assumed either contractually or by operation oflaw; and (iii) to ev3 LLC’s and the Company’s knowledge, there are no pastor present actions, activities, circumstances, conditions, events or incidentsrelated to ev3 LLC, the Company or any of their respective subsidiaries,including, without limitation, the release, emission, discharge, presence ordisposal of any Material of Environmental Concern, that would result in aviolation of any Environmental Law or form the basis of a potentialEnvironmental Claim against ev3 LLC, the Company or any of their respectivesubsidiaries or against any person or entity whose liability for anyEnvironmental Claim ev3 LLC, the Company or any of their respectivesubsidiaries has retained or assumed either contractually or by operation oflaw.

###  

### (aa)  *ERISA Compliance.*  ev3 LLC, the Company, their respectivesubsidiaries and any “employee benefit plan” (as defined under Section 3(3) ofthe Employee Retirement Income Security Act of 1974, as amended, and theregulations

 

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### and published interpretations thereunder(collectively, “ERISA”)) established or maintained by ev3 LLC, the Company,their respective subsidiaries or their “ERISA Affiliates” (as defined below)are in compliance with ERISA, except where the failure to be so in compliancewould not result in a Material Adverse Change. “ERISA Affiliate” means, with respect to ev3 LLC, the Company or asubsidiary, any member of any group of organizations described in Sections414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended, andthe regulations and published interpretations thereunder (the “Code”) of whichev3 LLC, the Company or such subsidiary is a member.  No “reportable event” (as defined underERISA) has occurred or is reasonably expected to occur with respect to any “employeebenefit plan” established or maintained by ev3 LLC, the Company, their subsidiariesor any of their ERISA Affiliates, except where such occurrence would not have aMaterial Adverse Change.  No “employeebenefit plan” established or maintained by ev3 LLC, the Company, theirrespective subsidiaries or any of their ERISA Affiliates, if such “employeebenefit plan” were terminated, would have any “amount of unfunded benefitliabilities” (as defined under ERISA), except where such liabilities would nothave a Material Adverse Change.  None ofev3 LLC, the Company, their respective subsidiaries nor any of their ERISAAffiliates has incurred or reasonably expects to incur any material liabilityunder (i) Title IV of ERISA with respect to termination of, or withdrawalfrom, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or4980B of the Code, except where such liabilities would not have a MaterialAdverse Change.  Each “employee benefitplan” established or maintained by ev3 LLC, the Company or their respectivesubsidiaries or any of their ERISA Affiliates that is intended to be qualifiedunder Section 401(a) of the Code satisfies the qualificationrequirements under Section 401(a) of the Code except where thefailure to satisfy such requirements would not result in a Material AdverseChange and, to the knowledge of ev3 LLC and the Company, nothing has occurred,whether by action or failure to act, which would cause the loss of suchqualification under Section 401(a) of the Code.

###  

### (bb)  *Brokers.* Other than as contemplated by this Agreement, there is no broker, finderor other party that is entitled to receive from ev3 LLC, the Company or theirrespective subsidiaries any brokerage or finder’s fee or other fee orcommission as a result of any transactions contemplated by this Agreement.

###  

### (cc)  *No Outstanding Loans or Other Indebtedness.*  There are no material outstanding loans,advances (except normal advances for business expenses in the ordinary courseof business) or guarantees or indebtedness by ev3 LLC or the Company to or forthe benefit of any of the officers or directors of the Company except asdisclosed in the Prospectus.

###  

### (dd)  *Compliance with Laws.*  Neither ev3 LLC nor the Company has beenadvised, nor has reason to believe, that it and each of their respectivesubsidiaries

 

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### are not conducting business in compliancewith all applicable laws, rules and regulations of the jurisdictions inwhich it is conducting business, including, without limitation, the rules andregulations of the FDA, the Federal Food, Drug and Cosmetic Act, as amended,the Biologic Products provisions of the Public Health Service Act, as amended,and the Comprehensive Drug Abuse Prevention and Control Act of 1970, asamended, except as disclosed in the Prospectus or except where failure to be soin compliance would not result in a Material Adverse Change.

###  

### (ee)  *FDA Proceedings*.  To the best of ev3 LLC’s and the Company’sknowledge, there are no rulemakings or similar proceedings before the FDA orany similar entity in any other jurisdiction which involve ev3 LLC, the Companyor any of their respective subsidiaries or any of the processes or productswhich the Prospectus discloses ev3 LLC, the Company or any of their respectivesubsidiaries has developed, is developing or proposes to develop, or uses or proposesto use which, if the subject of an action unfavorable to ev3 LLC, the Companyor any of their subsidiaries, would result in a Material Adverse Change.

###  

Any certificate signed by an officer of theCompany and delivered to the Representatives or to counsel for the Underwritersshall be deemed to be a representation and warranty by the Company to eachUnderwriter as to the matters set forth therein.

 

Each of ev3 LLC and the Company acknowledgethat the Underwriters and, for purposes of the opinions to be deliveredpursuant to Section 5 hereof, counsel to the Company and counsel to theUnderwriters, will rely upon the accuracy and truthfulness of the foregoingrepresentations and hereby consents to such reliance.

 

## B.  *Representations and Warranties of the SellingStockholder. *The SellingStockholder represents, warrants and covenants to each Underwriter as follows:

##  

### (a)  *TheUnderwriting Agreement. *ThisAgreement has been duly authorized, executed and delivered by or on behalf ofthe Selling Stockholder and is a valid and binding agreement of the SellingStockholder, enforceable against the Selling Stockholder in accordance with itsterms, except as may be limited by bankruptcy, insolvency, reorganization,moratorium or similar laws affecting the rights and remedies of creditorsgenerally and by the effect of general principles of equity and except that anyrights to indemnity and contribution pursuant to Sections 8 and 9 hereof may belimited by federal and state securities laws and public policy considerations.

###  

### (b)  *TheCustody Agreement and Power of Attorney. *Each of the (i) Custody Agreement signed by the SellingStockholder and the Company, as custodian (the “Custodian”), relating to thedeposit of the Common Shares to be sold by the

 

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### Selling Stockholder (the “Custody Agreement”)and (ii) Power of Attorney appointing certain individuals named therein asthe Selling Stockholder’s attorneys-in-fact (each, an “Attorney-in-Fact”) tothe extent set forth therein relating to the transactions contemplated herebyand by the Prospectus (the “Power of Attorney”), of the Selling Stockholder hasbeen duly authorized, executed and delivered by the Selling Stockholder and isa valid and binding agreement of the Selling Stockholder, enforceable againstthe Selling Stockholder in accordance with its terms, except as rights toindemnification thereunder may be limited by applicable law and except as theenforcement thereof may be limited by bankruptcy, insolvency, reorganization,moratorium or other similar laws relating to or affecting the rights andremedies of creditors or by general equitable principles.

###  

### (c)  *Titleto Common Shares to be Sold; All Authorizations Obtained. *The Selling Stockholder has goodand valid title to all of the membership units of ev3 LLC which will beconverted into Common Shares in connection with the Merger and may be sold bythe Selling Stockholder pursuant to this Agreement.  On the First Closing Date and the SecondClosing Date (as defined below), as applicable, the Selling Stockholder willhave, good and valid title to all of the Common Shares which may be sold by theSelling Stockholder pursuant to this Agreement on such date and the legal rightand power, and all authorizations and approvals required by law to enter intothis Agreement and its Custody Agreement and Power of Attorney, to sell,transfer and deliver all of the Common Shares which may be sold by the SellingStockholder pursuant to this Agreement and to comply with its other obligationshereunder and thereunder.

###  

### (d)  *Deliveryof the Common Shares to be Sold. *Deliveryof and payment for the Common Shares which are sold by the Selling Stockholderpursuant to this Agreement will pass good and valid title to such CommonShares, free and clear of any security interest, mortgage, pledge, lien,encumbrance or other claim.

###  

### (e)  *Non-Contravention;No Further Authorizations or Approvals Required. *The execution and delivery by theSelling Stockholder of, and the performance by the Selling Stockholder of itsobligations under, this Agreement, the Custody Agreement and the Power ofAttorney will not contravene or conflict with, result in a breach of, orconstitute a Default under, or require the consent of any other party to anyagreement or instrument to which the Selling Stockholder is a party or by whichit is bound or under which it is entitled to any right or benefit, anyprovision of applicable law or any judgment, order, decree or regulationapplicable to the Selling Stockholder of any court, regulatory body,administrative agency, governmental body or arbitrator having jurisdiction overthe Selling Stockholder.  No consent,approval, authorization or other order of, or registration or filing with, anycourt or other governmental authority or agency, is required for theconsummation by the Selling

 

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### Stockholder of the transactions contemplatedin this Agreement, except such as have been obtained or made and are in fullforce and effect under the Securities Act, applicable state securities or bluesky laws and from the NASD.

###  

### (f)  *NoRegistration or Other Similar Rights. *TheSelling Stockholder does not have any registration or other similar rights tohave any equity or debt securities registered for sale by the Company under theRegistration Statement or included in the offering contemplated by thisAgreement, except for such rights as are described in the Prospectus under “SharesEligible for Future Sale” and “Certain Relationships and Related PartyTransactions—Registration Rights Agreement”.

###  

### (g)  *NoFurther Consents, etc. *Noconsent, approval or waiver is required under any instrument or agreement towhich the Selling Stockholder is a party or by which it is bound or under whichit is entitled to any right or benefit, in connection with the offering, saleor purchase by the Underwriters of any of the Common Shares which may be soldby the Selling Stockholder under this Agreement or the consummation by theSelling Stockholder of any of the other transactions contemplated hereby.

###  

### (h)  *DisclosureMade by the Selling Stockholder in the Prospectus. *All information about the SellingStockholder furnished by or with the approval of the Selling Stockholder inwriting expressly for use in the Registration Statement is, and on the FirstClosing Date and the Second Closing Date will be, true, correct and complete inall material respects, and does not, and on the First Closing Date and theSecond Closing Date will not, contain any untrue statement of a material factor omit to state any material fact necessary to make such information notmisleading.  All information about theSelling Stockholder furnished by or with the approval of the Selling Stockholderin writing expressly for use in the Prospectus is, and on the First ClosingDate and the Second Closing Date will be, true, correct and complete in allmaterial respects, and does not, and on the First Closing Date and the SecondClosing Date will not, contain any untrue statement of a material fact or omitto state any material fact necessary to make such information, in light of thecircumstances under which they were made, not misleading.  The Selling Stockholder confirms as accuratethe number of shares of Common Stock set forth opposite the Selling Stockholder’sname in the Prospectus under the caption “Principal and Selling Stockholders”(both prior to and after giving effect to the sale of the Common Shares).

###  

### (i)  *NoPrice Stabilization or Manipulation. *TheSelling Stockholder has not taken and will not take, directly or indirectly,any action designed to or that might be reasonably expected to cause or resultin stabilization or manipulation of the price of the Common Stock to facilitatethe sale or resale of the Common Shares.

 

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### (j)  *Confirmation of ev3 LLC and Company Representationsand Warranties. *The SellingStockholder has no reason to believe that the representations and warranties ofeither ev3 LLC or the Company contained in Section 1(A) hereof arenot true and correct in all material respects, is familiar with theRegistration Statement and the Prospectus and has no knowledge of any materialfact, condition or information not disclosed in the Registration Statement orthe Prospectus which has had or may have a Material Adverse Change and is notprompted to sell shares of Common Stock by any information concerning ev3 LLCor the Company which is not set forth in the Registration Statement and theProspectus.

###  

Any certificate signed by or on behalf of theSelling Stockholder and delivered to the Representatives or to counsel for theUnderwriters pursuant to Section 5(k) hereof shall be deemed to be arepresentation and warranty by the Selling Stockholder to each Underwriter asto the matters covered thereby.

 

The Selling Stockholder acknowledges that theUnderwriters and, for purposes of the opinions to be delivered pursuant to Section 5hereof, counsel to the Company and counsel to the Underwriters, will rely uponthe accuracy and truthfulness of the foregoing representations and herebyconsents to such reliance.

 

# Section 2.  *Purchase,Sale and Delivery of the Common Shares.*

#  

### (a)  *TheFirm Common Shares. *TheCompany agrees to issue and sell to the several Underwriters the Firm CommonShares upon the terms herein set forth. On the basis of the representations, warranties and agreements hereincontained, and upon the terms but subject to the conditions herein set forth,the Underwriters agree, severally and not jointly, to purchase from the Companythe respective number of Firm Common Shares set forth opposite their names on Schedule A,plus any additional number of Firm Common Shares which the Underwriters maybecome obligated to purchase pursuant to the provisions of Section 10 hereof.  The purchase price per Firm Common Share tobe paid by the several Underwriters to the Company shall be $13.30 per share.

###  

### (b)  *TheFirst Closing Date.*  Deliveryof certificates for the Firm Common Shares to be purchased by the Underwritersand payment therefor shall be made at the offices of King & SpaldingLLP, 1185 Avenue of the Americas, New York, NY 10036 (or such other place asmay be agreed to by the Company and the Representatives) at 9:00 a.m. NewYork time, on the third (fourth, if the determination of the purchase price ofthe Firm Common Shares occurs after 4:30 p.m. New York time) business dayafter the date hereof (unless another time and date shall be agreed to by theRepresentatives and the Company) (the time and date of such closing are calledthe “First Closing Date”).  The Companyhereby acknowledges that circumstances

 

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### under which the Representatives may providenotice to postpone the First Closing Date as originally scheduled include, butare in no way limited to, any determination by the Company or theRepresentatives to recirculate to the public copies of an amended orsupplemented Prospectus or a delay as contemplated by the provisions of Section 10.

###  

### (c)  *TheOptional Common Shares; the Second Closing Date. *In addition, on the basis of therepresentations, warranties and agreements herein contained, and upon the termsbut subject to the conditions herein set forth, the Company hereby grants anoption to the several Underwriters to purchase, severally and not jointly, upto an aggregate of 1,728,850 Optional Common Shares from the Company and theSelling Stockholder hereby grants an option to the several Underwriters topurchase, severally and not jointly, up to an aggregate of 35,900 OptionalCommon Shares from the Selling Stockholder. The purchase price per Optional Common Share to be paid by the severalUnderwriters to the Company and the Selling Stockholder shall be $13.02 pershare.  The option granted hereunder isfor use by the Underwriters solely in covering any over-allotments inconnection with the sale and distribution of the Firm Common Shares.  No Optional Common Shares shall be sold ordelivered unless the Firm Common Shares previously have been, or simultaneouslyare, sold and delivered.  The optiongranted hereunder may be exercised at any time (but not more than once) uponnotice by the Representatives to the Company and the Selling Stockholder, whichnotice may be given at any time within 30 days from the date of theProspectus.  Such notice shall set forth (i) theaggregate number of Optional Common Shares as to which the Underwriters areexercising the option, (ii) the names and denominations in which thecertificates for the Optional Common Shares are to be registered and (iii) thetime, date and place at which such certificates will be delivered (which timeand date may be simultaneous with, but not earlier than, the First ClosingDate; and in such case the term “First Closing Date” shall refer to the timeand date of delivery of certificates for the Firm Common Shares and theOptional Common Shares).  Such time anddate of delivery, if subsequent to the First Closing Date, is called the “SecondClosing Date” and shall be determined by the Representatives and shall not beearlier than three nor later than five full business days after delivery ofsuch notice of exercise.  If any OptionalCommon Shares are to be purchased, (a) each Underwriter agrees, severallyand not jointly, to purchase the number of Optional Common Shares (subject tosuch adjustments to eliminate fractional shares as the Representatives maydetermine) that bears the same proportion to the total number of OptionalCommon Shares to be purchased as the number of Firm Common Shares set forth on Schedule Aopposite the name of such Underwriter bears to the total number of Firm CommonShares and (b) the Company and the Selling Stockholder agree, severallyand not jointly, to sell the number of Optional Common Shares (subject to suchadjustments to eliminate fractional shares as the Representatives maydetermine) that bears the same proportion to the total number of OptionalCommon Shares to be sold as the number of Optional Common Shares set

 

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### forth in Schedule B opposite the name ofthe Selling Stockholder (or, in the case of the Company, as the number ofOptional Common Shares to be sold by the Company as set forth in the paragraph “Introductory”of this Agreement) bears to the total number of Optional Common Shares.  The Representatives may cancel the option atany time prior to any notice of exercise of such option and prior to theexpiration of such option by giving written notice of such cancellation to theCompany and the Selling Stockholder.

###  

### (d)  *PublicOffering of the Common Shares.* The Representatives hereby advise the Company and the SellingStockholder that the Underwriters intend to offer for sale to the public, asdescribed in the Prospectus, their respective portions of the Common Shares assoon after this Agreement has been executed and the Registration Statement hasbeen declared effective as the Representatives, in their sole judgment, havedetermined is advisable and practicable.

###  

### (e)  *Paymentfor the Common Shares. *Paymentfor the Common Shares to be sold by the Company shall be made at the FirstClosing Date (and, if applicable, at the Second Closing Date) by wire transferof immediately available funds to the order of the Company.  Payment for the Common Shares to be sold bythe Selling Stockholder shall, if applicable, be made at the First Closing Dateor Second Closing Date, as applicable, by wire transfer of immediatelyavailable funds to the order of the Custodian.

###  

It is understood that the Representativeshave been authorized, for their own accounts and the accounts of the severalUnderwriters, to accept delivery of and receipt for, and make payment of thepurchase price for, the Firm Common Shares and any Optional Common Shares theUnderwriters have agreed to purchase. Piper and BAS, individually and not as the Representatives of theUnderwriters, may (but shall not be obligated to) make payment for any CommonShares to be purchased by any Underwriter whose funds shall not have beenreceived by the Representatives by the First Closing Date or the Second ClosingDate, as the case may be, for the account of such Underwriter, but any suchpayment shall not relieve such Underwriter from any of its obligations underthis Agreement.

 

The Selling Stockholder hereby agrees that (i) itwill pay all applicable stock transfer taxes, stamp duties and other similartaxes, if any, payable upon the sale or delivery of the Common Shares to besold by the Selling Stockholder to the several Underwriters, in connection withthe performance of the Selling Stockholder’s obligations hereunder and therespective Underwriters will pay any such taxes involved in further transfersand (ii) the Custodian is authorized to deduct for such payment any suchamounts from the proceeds to the Selling Stockholder hereunder and to hold suchamounts for the account of the Selling Stockholder with the Custodian under theCustody Agreement.

 

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### (f)  *Deliveryof the Common Shares. *TheCompany shall deliver, or cause to be delivered, to the Representatives for theaccounts of the several Underwriters certificates for the Firm Common Shares atthe First Closing Date, against the irrevocable release of a wire transfer ofimmediately available funds for the amount of the purchase price therefor.  The Company and the Selling Stockholder shallalso deliver, or cause to be delivered, to the Representatives for the accountsof the several Underwriters, certificates for the Optional Common Shares theUnderwriters have agreed to purchase from them at the First Closing Date or theSecond Closing Date, as the case may be, against the irrevocable release of awire transfer of immediately available funds for the amount of the purchaseprice therefor.  The certificates for theCommon Shares shall be registered in such names and denominations as theRepresentatives shall have requested at least two full business days prior tothe First Closing Date (or the Second Closing Date, as the case may be) and theform of certificate shall be made available for inspection on the business daypreceding the First Closing Date (or the Second Closing Date, as the case maybe) at a location in New York City as the Representatives may designate.  Time shall be of the essence, and delivery atthe time and place specified in this Agreement is a further condition to theobligations of the Underwriters.

###  

### (g)  *Deliveryof Prospectus to the Underwriters.* Not later than 12:00 p.m. on the second business day following thedate the Common Shares are first released by the Underwriters for sale to thepublic, the Company shall deliver or cause to be delivered, copies of theProspectus in such quantities and at such places as the Representatives shallrequest.

###  

# Section 3.  *AdditionalCovenants.*

#  

## A.  *Covenants of the Company.* The Company further covenants and agrees witheach Underwriter as follows:

##  

### (a)  *Representatives’Review of Proposed Amendments and Supplements.*  During such period beginning on the datehereof and ending on the later of the First Closing Date or such date, as inthe opinion of counsel for the Underwriters, the Prospectus is no longerrequired by law to be delivered in connection with sales by an Underwriter ordealer (the “Prospectus Delivery Period”), prior to amending or supplementingthe Registration Statement (including any registration statement filed under Rule 462(b) underthe Securities Act) or the Prospectus, the Company shall furnish to theRepresentatives for review a copy of each such proposed amendment orsupplement, and the Company shall not file any such proposed amendment orsupplement to which the Representatives reasonably object.

 

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### (b)  *SecuritiesAct Compliance.*  After thedate of this Agreement and during the Prospectus Delivery Period, the Companyshall promptly advise the Representatives in writing (i) of the receipt ofany comments of, or requests for additional or supplemental information from,the Commission, (ii) of the time and date of any filing of anypost-effective amendment to the Registration Statement or any amendment orsupplement to the Preliminary Prospectus or the Prospectus, (iii) of thetime and date that any post-effective amendment to the Registration Statementbecomes effective and (iv) of the issuance by the Commission of any stoporder suspending the effectiveness of the Registration Statement or anypost-effective amendment thereto or of any order preventing or suspending theuse of the Prospectus, or of any proceedings to remove, suspend or terminatefrom listing or quotation the Common Stock from any securities exchange uponwhich it is listed for trading or included or designated for quotation, or ofthe threatening or initiation of any proceedings for any of such purposes. Ifthe Commission shall enter any such stop order at any time, the Company willuse its commercially reasonable efforts to obtain the lifting of such order assoon as is reasonably possible. Additionally, the Company agrees that it shall comply with theprovisions of Rules 424(b) and 430A, as applicable, under theSecurities Act and will use its commercially reasonable efforts to confirm thatany filings made by the Company under such Rule 424(b) were receivedin a timely manner by the Commission.

###  

### (c)  *Amendmentsand Supplements to the Prospectus and Other Securities Act Matters.*  If, during the Prospectus Delivery Period,any event shall occur or condition exist as a result of which it is necessaryto amend or supplement the Prospectus in order to make the statements therein,in the light of the circumstances when the Prospectus is delivered to apurchaser, not misleading, or if in the reasonable opinion of counsel for theUnderwriters it is otherwise necessary to amend or supplement the Prospectus tocomply with the Securities Act, the Company agrees to promptly prepare (subjectto Section 3(A)(a) hereof), file with the Commission and furnish atits own expense to the Underwriters and to dealers, amendments or supplementsto the Prospectus so that the statements in the Prospectus as so amended orsupplemented will not, in the light of the circumstances when the Prospectus isdelivered to a purchaser, be misleading or so that the Prospectus, as amendedor supplemented, will comply with the Securities Act.

###  

### (d)  *Copiesof any Amendments and Supplements to the Prospectus.*  The Company agrees to furnish theRepresentatives, without charge, during the Prospectus Delivery Period, as manycopies of the Prospectus and any amendments and supplements thereto as theRepresentatives may reasonably request.

###  

### (e)  *BlueSky Compliance.*  The Companyshall cooperate with the Representatives and counsel for the Underwriters toqualify or register the Common

 

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### Shares for sale under (or obtain exemptionsfrom the application of) the state securities or blue sky laws or Canadianprovincial Securities laws or other foreign laws of those jurisdictionsreasonably designated by the Representatives, shall comply with such laws andshall continue such qualifications, registrations and exemptions in effect solong as required for the distribution of the Common Shares.  Notwithstanding the preceding sentence, theCompany shall not be required to qualify as a foreign corporation or to takeany action that would subject it to general service of process in any suchjurisdiction where it is not presently qualified or where it would be subjectto taxation as a foreign corporation. The Company will advise theRepresentatives promptly of the suspension of the qualification or registrationof (or any such exemption relating to) the Common Shares for offering, sale ortrading in any jurisdiction or any initiation or threat of any proceeding forany such purpose, and in the event of the issuance of any order suspending suchqualification, registration or exemption, the Company shall use itscommercially reasonable efforts to obtain the withdrawal thereof as soon as isreasonably possible.

###  

### (f)  *Useof Proceeds.*  The Companyshall apply the net proceeds from the sale of the Common Shares sold by it inthe manner described under the caption “Use of Proceeds” in the Prospectus.

###  

### (g)  *TransferAgent.*  The Company shallengage and maintain, at its expense, a registrar and transfer agent for theCommon Stock.

###  

### (h)  *EarningsStatement.*  The Company willtimely file such reports pursuant to the Exchange Act as are necessary to makegenerally available to its security holders and to the Representatives as soonas practicable an earnings statement (which need not be audited) covering thetwelve-month period ending July 2, 2006 that satisfies the provisions of Section 11(a) ofthe Securities Act.

###  

### (i)  *PeriodicReporting Obligations.*  Duringthe Prospectus Delivery Period the Company shall file, on a timely basis, withthe Commission and the NASDAQ National Market all reports and documentsrequired to be filed under the Exchange Act. Additionally, the Company shallreport the use of proceeds from the issuance of the Common Shares as may berequired under Rule 463 under the Securities Act.

###  

### (j)  *Company to Provide Interim Financial Statements.*  Prior to the Closing Date, the Company willfurnish the Underwriters, as soon as they have been prepared by or areavailable to the Company, a copy of any unaudited interim financial statementsof the Company for any period subsequent to the period covered by the mostrecent financial statements appearing in the Registration Statement and theProspectus.

 

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### (k)  *Quotation. *TheCompany will use its best efforts to include, subject to notice of issuance,the Common Shares on the NASDAQ National Market.

###  

### (l)  *Agreement Not to Offer or Sell Additional Securities.*  During the period commencing on the datehereof and ending on the 180th day following the date of the Prospectus, theCompany will not, without the prior written consent of Piper and BAS (whichconsent may be withheld at the sole discretion of Piper and BAS), directly orindirectly, sell, offer, contract or grant any option to sell, pledge, transferor establish an open “put equivalent position” within the meaning of Rule 16a-1(h) underthe Exchange Act, or otherwise dispose of or transfer, or announce the offeringof, or file any registration statement under the Securities Act in respect of,any shares of Common Stock, options or warrants to acquire shares of the CommonStock or securities exchangeable or exercisable for or convertible into sharesof Common Stock or publicly announce the intention to do any of the foregoing(other than as contemplated by this Agreement with respect to the CommonShares); provided, however, that the Company may (a) issue shares of itsCommon Stock or options to purchase its Common Stock, or Common Stock uponexercise of options or warrants, pursuant to any warrant, stock option, stockbonus or other stock plan or arrangement described in the Prospectus, but onlyif (i) the holders of such warrants, shares, options, or shares issuedupon exercise of such warrants or options have executed a lock up agreement inthe form of Exhibit E hereto or (ii) such warrants, shares, optionsor shares issued upon exercise of such warrants or options are not exercisableby their terms during the period commencing on the date hereof and ending onthe 180th day following the date of the Prospectus, as such periodmay be extended pursuant to this Section 3A(l), or (b) file aregistration statement on Form S-8 with respect to the shares of CommonStock subject to the stock options issued or to be issued pursuant to any stockoption, stock bonus or other stock plan or arrangement described in theProspectus, or (c) issue shares of its Common Stock or options to purchaseits Common Stock to the extent the Company is required to do so in connectionwith the transactions contemplated by each of the Note Contribution andExchange Agreement, dated as of April 4, 2005 (filed as Exhibit 2.3to the Registration Statement) and the Agreement and Plan of Merger, dated asof April 4, 2005 (filed as Exhibit 2.1 to the RegistrationStatement).  Notwithstanding the foregoing,if (x) during the last 17 days of the 180-day restricted period the Companyissues an earnings release or material news or a material event relating to theCompany occurs, or (y) prior to the expiration of the 180-day restrictedperiod, the Company announces that it will release earnings results during the16-day period beginning on the last day of the 180-day period, the restrictionsimposed in this clause shall continue to apply until the expiration of the 18-dayperiod beginning on the issuance of the earnings release or the occurrence ofthe material news or material event.

 

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### (m)  *Future Reports to the Representatives.*  During the period of five years hereafter theCompany will furnish to the Representatives at 800 Nicollet Mall, Minneapolis,MN 55402 Attention: Equity Capital Markets: (i) as soon as practicableafter the end of each fiscal year, copies of the Annual Report of the Companycontaining the balance sheet of the Company as of the close of such fiscal yearand statements of income, stockholders’ equity and cash flows for the year thenended and the opinion thereon of the Company’s independent public or certifiedpublic accountants; (ii) as soon as practicable after the filing thereof,copies of each proxy statement, Annual Report on Form 10-K, QuarterlyReport on Form 10-Q, Current Report on Form 8-K or other report filedby the Company with the Commission, the NASD or any securities exchange; and (iii) assoon as available, copies of any report or communication of the Company mailedgenerally to holders of its capital stock; provided, however, that the Companyshall not be required to furnish copies of such reports, documents orcommunications that are filed with the Commission and available through EDGAR.

###  

### (n)  *Investment Limitation.*  The Company shall not invest, or otherwiseuse the proceeds received by the Company from its sale of the Common Shares, insuch a manner as would require the Company or any of its subsidiaries toregister as an investment company under the Investment Company Act.

###  

### (o)  *No Manipulation of Price.*  The Company will not take, directly orindirectly, any action designed to cause or result in, or that has constitutedor might reasonably be expected to constitute, the stabilization ormanipulation of the price of any securities of the Company to facilitate thesale or resale of the Common Shares.

###  

### (p)  *Directed Share Program. *In connection with the DirectedShare Program, the Company will ensure that the Directed Shares will berestricted to the extent required by the NASD or the NASD rules from sale,transfer, assignment, pledge or hypothecation for a period of three monthsfollowing the date of the effectiveness of the Registration Statement.  The Designated Underwriter will notify theCompany as to which Participants will need to be so restricted.  The Company will direct the transfer agent toplace stop transfer restrictions upon such securities for such period of time.  Should the Company release, or seek to release,from such restrictions any of the Directed Shares, the Company agrees toreimburse the Underwriters for any reasonable expenses (including, withoutlimitation, reasonable legal expenses) they incur in connection with suchrelease.

###  

## B.  *Covenant of the Selling Stockholder. *The Selling Stockholder furthercovenants and agrees with each Underwriter:

 

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### (a)  *Deliveryof Forms W-8 and W-9. *Todeliver to the Representative prior to the First Closing Date a properlycompleted and executed United States Treasury Department Form W-8 (if theSelling Stockholder is a non-United States person) or Form W-9 (if theSelling Stockholder is a United States Person).

###  

Piper and BAS, on behalf of the severalUnderwriters, may, in their sole discretion, waive in writing the performanceby the Company or the Selling Stockholder of any one or more of the foregoingcovenants or extend the time for their performance.  Notwithstanding the foregoing, Piper and BAS,for the benefit of each of the other Representatives, agree not to consent toany action proposed to be taken by the Company, the Selling Stockholder or anyother holder of the Company’s securities that would otherwise be prohibited by,or to waive compliance by the Company, the Selling Stockholder or any suchother security holder with the provisions of Section 3(A)(l) above or anylock-up agreement delivered pursuant to Section 5(m) below without givingeach of the other Underwriters such prior notice as each of the Representativesdeem acceptable to permit compliance by the Representatives and otherUnderwriters with applicable provisions of NASD Conduct Rule 2711(f) restrictingpublication and distribution of research and public appearances by researchanalysts before and after the expiration, waiver or termination of a lock-upagreement.

 

# Section 4.  *Payment ofExpenses.*  The Company agreesto pay all costs, fees and expenses incurred in connection with the performanceby the Company of its obligations hereunder and in connection with thetransactions contemplated hereby, including without limitation (i) allexpenses incident to the issuance and delivery of the Common Shares (includingall printing and engraving costs), (ii) all fees and expenses of theregistrar and transfer agent of the Common Stock, (iii) all necessaryissue, transfer and other stamp taxes in connection with the issuance and saleof the Common Shares to the Underwriters, (iv) all fees and expenses ofthe Company’s counsel, independent public or certified public accountants andother advisors engaged by the Company, (v) all costs and expenses incurredin connection with the preparation, printing, filing, shipping and distributionof the Registration Statement (including financial statements, exhibits, schedules,consents and certificates of experts), the Preliminary Prospectus and theProspectus (including any Prospectus wrapper), and all amendments andsupplements thereto, and this Agreement, (vi) all filing fees, attorneys’fees and expenses reasonably incurred by the Company or the Underwriters inconnection with qualifying or registering (or obtaining exemptions from thequalification or registration of) all or any part of the Common Shares foroffer and sale under the state securities or blue sky laws or the provincialsecurities laws of Canada, and, if requested by the Representatives, preparingand printing a “Blue Sky Survey” or memorandum, and any supplements thereto,advising the Underwriters of such qualifications, registrations and exemptions,(vii) the filing fees incident to, and the reasonable fees and expenses ofcounsel for the Underwriters in connection with, the NASD’s review and approvalof the Underwriters’ participation in the offering and distribution of theCommon Shares, (viii) the fees and expenses associated with including theCommon Stock on the NASDAQ National Market, (ix) all other fees, costs andexpenses referred to in Item 13 of Part II of the Registration Statement,(x) the fees and expenses of the Custodian, (xi) all costs and expenses of theUnderwriters, including the reasonable fees and disbursements of counsel forthe Underwriters, in

 

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# connection with matters related to the Directed Shares which aredesignated by the Company for sale to Participants, and (xii) any travelexpenses of the Company’s officers and employees and any other expenses of theCompany in connection with attending or hosting meetings with prospectivepurchasers of the Common Shares, provided that the Company and the Underwritersagree that expenses for any charter air travel in connection with such meetingsshall be borne equally by the Company and the Underwriters.  Except as provided in this Section 4, Section 6,Section 8 and Section 9 hereof, the Underwriters shall pay their ownexpenses, including the fees and disbursements of their counsel.

#  

The Selling Stockholder further agrees witheach Underwriter to pay (directly or by reimbursement) all fees and expensesincident to the performance of their obligations under this Agreement which arenot otherwise specifically provided for herein, including but not limited to (i) feesand expenses of counsel and other advisors for the Selling Stockholder and (ii) expensesand taxes incident to the sale and delivery of the Common Shares to be sold bythe Selling Stockholder to the Underwriters hereunder (which taxes, if any, maybe deducted by the Custodian under the provisions of Section 2 of thisAgreement).

 

# Section 5.  *Conditionsof the Obligations of the Underwriters.*  The obligations of the several Underwritersto purchase and pay for the Common Shares as provided herein on the FirstClosing Date and, with respect to the Optional Common Shares, the SecondClosing Date, shall be subject to the accuracy of the representations andwarranties on the part of ev3 LLC, the Company and the Selling Stockholder setforth in Sections 1(A) and 1(B) hereof as of the date hereof and theCompany and the Selling Stockholder as of the First Closing Date as though thenmade and, with respect to the Optional Common Shares, as of the Second ClosingDate as though then made, to the timely performance by the Company and theSelling Stockholder of their respective covenants and other obligationshereunder, and to each of the following additional conditions:

#  

### (a)  *Accountants’Comfort Letters.*  On the datehereof, the Representatives shall have received from each ofPricewaterhouseCoopers LLP and Ernst & Young LLP, independentregistered public accounting firms for the Company, a letter dated the datehereof addressed to the Underwriters, in form and substance satisfactory to theRepresentatives, containing statements and information of the type ordinarilyincluded in accountant’s “comfort letters” to underwriters, delivered accordingto Statement of Auditing Standards No. 72 (or any successor bulletin),with respect to the audited and unaudited financial statements and certainfinancial information contained in the Registration Statement and theProspectus (and the Representatives shall have received an additional twoconformed copies of such accountants’ letter for each of the severalUnderwriters).

###  

### (b)  *Compliancewith Registration Requirements; No Stop Order; No Objection from NASD.*  For the period from and after effectivenessof this Agreement

 

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### and prior to the First Closing Date and, withrespect to the Optional Common Shares, the Second Closing Date:

###  

#### (i)  the Company shall have filed theProspectus with the Commission (including the information required by Rule 430Aunder the Securities Act) in the manner and within the time period required by Rule 424(b) underthe Securities Act; or the Company shall have filed a post-effective amendmentto the Registration Statement containing the information required by such Rule 430A,and such post-effective amendment shall have become effective;

####  

#### (ii)  no stop order suspending theeffectiveness of the Registration Statement, any Rule 462(b) RegistrationStatement, or any post-effective amendment to the Registration Statement, shallbe in effect and no proceedings for such purpose shall have been instituted orthreatened by the Commission; and

####  

#### (iii)  the NASD shall have raised noobjection to the fairness and reasonableness of the underwriting terms andarrangements.

####  

### (c)  *NoMaterial Adverse Change.*  Forthe period from and after the date of this Agreement and prior to the FirstClosing Date and, with respect to the Optional Common Shares, the SecondClosing Date, in the judgment of the Representatives there shall not haveoccurred any Material Adverse Change.

###  

### (d)  *Opinionsof Counsel for the Company.* On each of the First Closing Date and the Second Closing Date theRepresentatives shall have received the opinion of (i) King &Spalding LLP, counsel for the Company, dated as of such closing date, the formof which is attached as Exhibit A-1 (and the Representatives shall havereceived an additional two conformed copies of such counsel’s legal opinion foreach of the several Underwriters) and (ii) Oppenheimer Wolff &Donnelly LLP, special counsel for the Company, dated as of such closing date,the form of which is attached as Exhibit A-2 (and the Representativesshall have received an additional two conformed copies of such counsel’s legalopinion for each of the several Underwriters).

###  

### (e)  *Opinionof Special Regulatory Counsel for the Company.*  On each of the First Closing Date and theSecond Closing Date the Representatives shall have received the opinion of (i) King &Spalding LLP, special U.S. regulatory counsel for the Company, dated as of suchclosing date, the form of which is attached as Exhibit B-1 (and theRepresentatives shall have received an additional two conformed copies of suchcounsel’s legal opinion for each of the several Underwriters) and (ii)TaylorWessing, special foreign regulatory counsel for the Company, dated as of suchclosing date, the form of which is attached as Exhibit B(2) (and theRepresentatives shall have

 

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### received an additional two conformed copiesof such counsel’s legal opinion for each of the several Underwriters).

###  

### (f)  *Opinionof Special Patent Counsel for the Company.*  On each of the First Closing Date and theSecond Closing Date the Representatives shall have received the opinion of King &Spalding LLP, special patent counsel for the Company, dated as of such closingdate, the form of which is attached as Exhibit C (and the Representativesshall have received an additional two conformed copies of such counsel’s legalopinion for each of the several Underwriters).

###  

### (g)  *Opinionof Counsel for the Underwriters.* On each of the First Closing Date and the Second Closing Date theRepresentatives shall have received the favorable opinion of Willkie Farr &Gallagher LLP, counsel for the Underwriters, dated as of such closing date, inform and substance satisfactory to the Underwriters (and the Representativesshall have received an additional two conformed copies of such counsel’s legalopinion for each of the several Underwriters).

###  

### (h)  *Officers’Certificate.*  On each of theFirst Closing Date and the Second Closing Date the Representatives shall havereceived a written certificate executed by the Chairman of the Board, ChiefExecutive Officer or President of the Company and the Chief Financial Officeror Chief Accounting Officer of the Company, dated as of such closing date, tothe effect set forth in subsection (b)(ii) of this Section 5,and further to the effect that:

###  

#### (i)  for the period from and after thedate of this Agreement and prior to such closing date, there has not occurredany Material Adverse Change;

####  

#### (ii)  the representations and warrantiesof the Company set forth in Section 1(A) of this Agreement are trueand correct with the same force and effect as though expressly made on and asof such closing date;

####  

#### (iii)  the Company has complied with allof its covenants and agreements hereunder and satisfied all the conditions onits part to be performed or satisfied hereunder at or prior to such closing date;and

####  

#### (iv)  the transactions contemplated bythe Note Contribution and Exchange Agreement, dated as of April 4, 2005(filed as Exhibit 2.3 to the Registration Statement) and the Agreement andPlan of Merger, dated as of April 4, 2005 (filed as Exhibit 2.1 tothe Registration Statement) have been consummated in accordance with the termsof such agreements.

 

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### (i)  *Bring-downComfort Letters.*  On each ofthe First Closing Date and the Second Closing Date the Representatives shallhave received from each of PricewaterhouseCoopers LLP and Ernst &Young LLP, independent registered public accounting firms for the Company, aletter dated such date, in form and substance satisfactory to theRepresentatives, to the effect that they reaffirm the statements made in theletter furnished by them pursuant to subsection (a) of this Section 5,except that the specified date referred to therein for the carrying out ofprocedures shall be no more than three business days prior to the First ClosingDate or Second Closing Date, as the case may be (and the Representatives shallhave received an additional two conformed copies of such accountants’ letterfor each of the several Underwriters).

###  

### (j)  *Opinion of Counsel for the Selling Stockholder. *On each of the First Closing Dateand the Second Closing Date the Representatives shall have received thefavorable opinion of Oppenheimer Wolff & Donnelly LLP, counsel for theSelling Stockholder, dated as of such Closing Date, the form of which isattached as Exhibit D (and the Representatives shall have received anadditional two conformed copies of such counsel’s legal opinion for each of theseveral Underwriters).

###  

### (k)  *Selling Stockholder’s Certificate. *On each of the First Closing Dateand the Second Closing Date the Representatives shall receive a writtencertificate executed by the Selling Stockholder, dated as of such closing date,to the effect that:

###  

#### (i)  the representations, warranties andcovenants of the Selling Stockholder set forth in Section 1(B) ofthis Agreement are true and correct with the same force and effect as thoughexpressly made by the Selling Stockholder on and as of such closing date; and

####  

#### (ii)  the Selling Stockholder hascomplied with all the agreements and satisfied all the conditions on its partto be performed or satisfied at or prior to such closing date.

####  

### (l)  *Selling Stockholder’s Documents. *On the date hereof, the Companyand the Selling Stockholders shall have furnished for review by theRepresentatives copies of the Power of Attorney and Custody Agreement executedby the Selling Stockholder and such further information, certificates anddocuments as the Representatives may reasonably request.

###  

### (m)  *Lock-Up Agreement from Certain Securityholders of theCompany.*  On or prior to thedate hereof, the Company shall have furnished to the Representatives anagreement in the form of Exhibit E hereto from the persons on Exhibit Fhereto, and such agreement shall be in full force and effect on each of theFirst Closing Date and the Second Closing Date.

 

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### (n)  *Additional Documents.*  On or before each of the First Closing Dateand the Second Closing Date, the Representatives and counsel for theUnderwriters shall have received such information, documents and opinions asthey may reasonably require for the purposes of enabling them to pass upon theissuance and sale of the Common Shares as contemplated herein, or in order toevidence the accuracy of any of the representations and warranties, or thesatisfaction of any of the conditions or agreements, herein contained.

###  

If any condition specified in this Section 5is not satisfied when and as required to be satisfied, this Agreement may beterminated by the Representatives by notice to the Company and the SellingStockholder at any time on or prior to the First Closing Date and, with respectto the Optional Common Shares, at any time prior to the Second Closing Date,which termination shall be without liability on the part of any party to anyother party, except that Section 4, Section 6, Section 8 and Section 9shall at all times be effective and shall survive such termination.

 

# Section 6.  *Reimbursementof Underwriters’ Expenses.*  Ifthis Agreement is terminated by the Representatives pursuant to Section 5,Section 7, Section 10 (to the extent the termination pursuant to Section 10is not as a result of (a) a default by an Underwriter that is aRepresentative (a “Defaulting Representative”) or (b) a default by aDefaulting Representative and one or more other defaulting Underwriters that isnot a Defaulting Representative), Section 11 or Section 17, or if thesale to the Underwriters of the Common Shares on the First Closing Date is notconsummated because of any refusal, inability or failure on the part of theCompany or the Selling Stockholder to perform any agreement herein or to complywith any provision hereof, the Company agrees to reimburse the Representativesand the other Underwriters (or such Underwriters as have terminated thisAgreement with respect to themselves), severally, upon demand for allout-of-pocket expenses that shall have been reasonably incurred by theRepresentatives and the Underwriters in connection with the proposed purchaseand the offering and sale of the Common Shares, including but not limited tofees and disbursements of counsel, printing expenses, travel expenses, postage,facsimile and telephone charges.

#  

# Section 7.  *Effectivenessof this Agreement.*  ThisAgreement shall not become effective until the later of (i) the executionof this Agreement by the parties hereto and (ii) notification by theCommission to the Company and the Representatives of the effectiveness of theRegistration Statement under the Securities Act.

#  

Prior to such effectiveness, this Agreementmay be terminated by any party by notice to each of the other parties hereto,and any such termination shall be without liability on the part of (a) theCompany or the Selling Stockholder to any Underwriter, except that if this Agreementis terminated by the Company or the Selling Stockholder, the Company and theSelling Stockholder shall be obligated to reimburse the expenses of theRepresentatives and the Underwriters pursuant to Sections 4 and 6 hereof, (b) anyUnderwriter to the Company or the Selling Stockholder, or (c) any

 

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partyhereto to any other party except that the provisions of Section 8 and Section 9shall at all times be effective and shall survive such termination.

 

# Section 8.  *Indemnification.*

#  

### (a)  *Indemnificationof the Underwriters by the Company.* The Company agrees to indemnify and hold harmless each Underwriter, itsofficers and employees, and each person, if any, who controls any Underwriterwithin the meaning of Section 15 of the Securities Act against any loss,claim, damage, liability or expense, as incurred, to which such Underwriter orsuch controlling person may become subject, under the Securities Act, theExchange Act or other federal or state statutory law or regulation, or atcommon law or otherwise (including in settlement of any litigation, if suchsettlement is effected with the written consent of the Company), insofar assuch loss, claim, damage, liability or expense (or actions in respect thereofas contemplated below) arises out of or is based (i) upon any untruestatement or alleged untrue statement of a material fact contained in theRegistration Statement, or any amendment thereto, including any informationdeemed to be a part thereof pursuant to Rule 430A under the SecuritiesAct, or the omission or alleged omission therefrom of a material fact requiredto be stated therein or necessary to make the statements therein notmisleading; or (ii) upon any untrue statement or alleged untrue statementof a material fact contained in the Preliminary Prospectus or the Prospectus(or any amendment or supplement thereto) , or the omission or alleged omissiontherefrom of a material fact necessary in order to make the statements therein,in the light of the circumstances under which they were made, not misleading;or (iii) in whole or in part upon any inaccuracy in the representationsand warranties of ev3 LLC and the Company contained herein; or (iv) inwhole or in part upon any failure of the Company to perform its obligationshereunder or under law ; and to reimburse each Underwriter and each such controllingperson for any and all expenses (including the fees and disbursements ofcounsel chosen by Piper and BAS) as such expenses are reasonably incurred bysuch Underwriter or such controlling person in connection with investigating,defending, settling, compromising or paying any such loss, claim, damage,liability, expense or action; provided, however, that the foregoing indemnityagreement shall not apply to any loss, claim, damage, liability or expense tothe extent, but only to the extent, arising out of or based upon any untruestatement or alleged untrue statement or omission or alleged omission made inreliance upon and in conformity with written information furnished to theCompany by the Representatives expressly for use in the Registration Statement,the Preliminary Prospectus or the Prospectus (or any amendment or supplementthereto); and provided, further, that with respect to the PreliminaryProspectus, the foregoing indemnity agreement shall not inure to the benefit ofany Underwriter from whom the person asserting any loss, claim, damage,liability or expense purchased Common Shares, or any person controlling suchUnderwriter, if copies of the Prospectus were timely delivered to the

 

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### Underwriter pursuant to Section 2 and acopy of the Prospectus (as then amended or supplemented, if the Company shallhave furnished any amendments or supplements thereto) was not sent or given byor on behalf of such Underwriter to such person, if required by law so to havebeen delivered, at or prior to the written confirmation of the sale of theCommon Shares to such person, and if the Prospectus (as so amended orsupplemented) would have cured the defect giving rise to such loss, claim,damage, liability or expense. The indemnity agreement set forth in this Section 8(a) shallbe in addition to any liabilities that the Company may otherwise have.

###  

### (b)  *Indemnificationof the Underwriters by the Selling Stockholder.*The SellingStockholder agrees to indemnify and hold harmless each Underwriter, itsofficers and employees, and each person, if any, who controls any Underwriterwithin the meaning of Section 15 of the Securities Act against any loss,claim, damage, liability or expense, as incurred, to which such Underwriter orsuch controlling person may become subject, under the Securities Act, theExchange Act or other federal or state statutory law or regulation, or atcommon law or otherwise (including in settlement of any litigation, if suchsettlement is effected with the written consent of the Selling Stockholder),insofar as such loss, claim, damage, liability or expense (or actions inrespect thereof as contemplated below) arises out of or is based (i) uponany untrue statement or alleged untrue statement of a material fact containedin the Registration Statement, or any amendment thereto, including anyinformation deemed to be a part thereof pursuant to Rule 430A under theSecurities Act, or the omission or alleged omission therefrom of a materialfact required to be stated therein or necessary to make the statements thereinnot misleading but only to the extent that the untrue statement or allegeduntrue statement or omission or alleged omission was made in reliance upon andin conformity with information relating to the Selling Stockholder furnished inwriting to the Company by or with the approval of the Selling Stockholderexpressly for use in the Registration Statement or any amendments orsupplements thereto; or (ii) upon any untrue statement or alleged untruestatement of a material fact contained in the Preliminary Prospectus or theProspectus (or any amendment or supplement thereto), or the omission or allegedomission therefrom of a material fact necessary in order to make the statementstherein, in the light of the circumstances under which they were made, notmisleading but only to the extent that the untrue statement or alleged untruestatement or omission or alleged omission was made in reliance upon and inconformity with information relating to the Selling Stockholder furnished inwriting to the Company by or with the approval of the Selling Stockholderexpressly for use in the Registration Statement, the Preliminary Prospectus,the Prospectus or any amendments or supplements thereto; (iii) in whole orin part upon any inaccuracy in the representations and warranties of theSelling Stockholder contained herein; or (iv) in whole or in part upon anyfailure of the Selling Stockholder to perform its obligations hereunder orunder law; and to reimburse each Underwriter and each such controlling personfor any and all expenses (including the

 

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### fees and disbursements of one counsel chosenby BAS and Piper) as such expenses are reasonably incurred by such Underwriteror such controlling person in connection with investigating, defending,settling, compromising or paying any such loss, claim, damage, liability,expense or action; provided, however, that the foregoing indemnity agreementshall not apply to any loss, claim, damage, liability or expense to the extent,but only to the extent, arising out of or based upon any untrue statement oralleged untrue statement or omission or alleged omission made in reliance uponand in conformity with written information furnished to the SellingStockholders by the Representatives expressly for use in any the RegistrationStatement, the Preliminary Prospectus or the Prospectus (or any amendment orsupplement thereto); and provided, further, that with respect to the PreliminaryProspectus, the foregoing indemnity agreement shall not inure to the benefit ofany Underwriter from whom the person asserting any loss, claim, damage,liability or expense purchased Common Shares, or any person controlling suchUnderwriter, if copies of the Prospectus were timely delivered to theUnderwriter pursuant to Section 2 and a copy of the Prospectus (as thenamended or supplemented, if the Selling Stockholder shall have furnished anyamendments or supplements thereto) was not sent or given by or on behalf ofsuch Underwriter to such person, if required by law so to have been delivered,at or prior to the written confirmation of the sale of the Common Shares tosuch person, and if the Prospectus (as so amended or supplemented) would havecured the defect giving rise to such loss, claim, damage, liability orexpense.  Each Underwriter herebyacknowledges that the only information that the Selling Stockholder furnishedto the Company expressly for use in the Registration Statement, the PreliminaryProspectus or the Prospectus (or any amendment or supplement thereto) are therespective statements concerning the Selling Stockholder set forth in the tableunder the caption “Principal and Selling Stockholders” in the Prospectus andassociated footnotes thereto.  Theliability of the Selling Stockholder under the indemnity agreement contained inthis paragraph 8(b) shall be limited to an amount equal to the netproceeds received by the Selling Stockholder from the offering of the OptionalCommon Shares sold by the Selling Stockholder pursuant to this Agreement.

###  

### (c)  *Indemnificationof the Company, its Directors and Officers and the Selling Stockholder.*  Each Underwriter agrees, severally and notjointly, to indemnify and hold harmless the Company, each of its directors,each of its officers who signed the Registration Statement, the SellingStockholder and each person, if any, who controls the Company or the SellingStockholder within the meaning of Section 15 of the Securities Act againstany loss, claim, damage, liability or expense, as incurred, to which theCompany, or any such director, officer, Selling Stockholder or controllingperson may become subject, under the Securities Act, the Exchange Act, or otherfederal or state statutory law or regulation, or at common law or otherwise(including in settlement of any litigation, if such settlement is effected withthe written consent of such Underwriter), insofar as such loss, claim, damage,liability or expense (or actions

 

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### in respect thereof as contemplated below)arises out of or is based upon any untrue or alleged untrue statement of amaterial fact contained in the Registration Statement, the PreliminaryProspectus or the Prospectus (or any amendment or supplement thereto), orarises out of or is based upon the omission or alleged omission to statetherein a material fact required to be stated therein or necessary to make thestatements therein not misleading, in each case to the extent, but only to theextent, that such untrue statement or alleged untrue statement or omission oralleged omission was made in the Registration Statement, the PreliminaryProspectus, the Prospectus (or any amendment or supplement thereto), inreliance upon and in conformity with written information furnished to theCompany and the Selling Stockholder by the Representatives expressly for usetherein; and to reimburse the Company, or any such director, officer, SellingStockholder or controlling person for any legal and other expense reasonablyincurred by the Company, or any such director, officer, Selling Stockholder orcontrolling person in connection with investigating, defending, settling,compromising or paying any such loss, claim, damage, liability, expense or action.  Each of the Company and the SellingStockholder hereby acknowledges that the only information that the Underwritershave furnished to the Company and the Selling Stockholder expressly for use inthe Registration Statement, the Preliminary Prospectus or the Prospectus (orany amendment or supplement thereto) are the statements set forth in the tablein the first paragraph and in the third, seventh, fourteenth, fifteenth andseventeenth through twenty-third paragraphs under the caption “Underwriting” inthe Prospectus; and the Underwriters confirm that such statements arecorrect.  The indemnity agreement setforth in this Section 8(c) shall be in addition to any liabilitiesthat each Underwriter may otherwise have.

###  

### (d)  *Notificationsand Other Indemnification Procedures.*  Promptly after receipt by an indemnifiedparty under this Section 8 of notice of the commencement of any action,such indemnified party will, if a claim in respect thereof is to be madeagainst an indemnifying party under this Section 8, notify theindemnifying party in writing of the commencement thereof, but the omission soto notify the indemnifying party will not relieve it from any liability whichit may have to any indemnified party for contribution or otherwise than underthe indemnity agreement contained in this Section 8 or to the extent it isnot prejudiced as a proximate result of such failure. In case any such actionis brought against any indemnified party and such indemnified party seeks orintends to seek indemnity from an indemnifying party, the indemnifying partywill be entitled to participate in, and, to the extent that it shall elect,jointly with all other indemnifying parties similarly notified, by writtennotice delivered to the indemnified party promptly after receiving theaforesaid notice from such indemnified party, to assume the defense thereofwith counsel reasonably satisfactory to such indemnified party; provided,however, if the defendants in any such action include both the indemnifiedparty and the indemnifying party and the indemnified party shall havereasonably concluded that a conflict may

 

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### arise between the positions of theindemnifying party and the indemnified party in conducting the defense of anysuch action or that there may be legal defenses available to it and/or otherindemnified parties which are different from or additional to those availableto the indemnifying party, the indemnified party or parties shall have theright to select separate counsel to assume such legal defenses and to otherwiseparticipate in the defense of such action on behalf of such indemnified partyor parties. Upon receipt of notice from the indemnifying party to suchindemnified party of such indemnifying party’s election so to assume thedefense of such action and approval by the indemnified party of counsel, theindemnifying party will not be liable to such indemnified party under this Section 8for any legal or other expenses subsequently incurred by such indemnified partyin connection with the defense thereof unless (i) the indemnified partyshall have employed separate counsel in accordance with the proviso to the nextpreceding sentence (it being understood, however, that the indemnifying partyshall not be liable for the expenses of more than one separate counsel(together with local counsel), approved by the indemnifying parties (Piper andBAS in the case of Section 8(c) and Section 9), representing theindemnified parties who are parties to such action) or (ii) the indemnifyingparty shall not have employed counsel satisfactory to the indemnified party torepresent the indemnified party within a reasonable time after notice ofcommencement of the action, in each of which cases the fees and expenses ofcounsel shall be at the expense of the indemnifying party.

###  

### (e)  *Settlements.*  The indemnifying party under this Section 8shall not be liable for any settlement of any proceeding effected without itswritten consent, but if settled with such consent or if there be a finaljudgment for the plaintiff, the indemnifying party agrees to indemnify theindemnified party against any loss, claim, damage, liability or expense byreason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnifiedparty shall have requested an indemnifying party to reimburse the indemnifiedparty for fees and expenses of counsel as contemplated by Section 8(d) hereof,the indemnifying party agrees that it shall be liable for any settlement of anyproceeding effected without its written consent if (i) such settlement isentered into more than 30 days after receipt by such indemnifying party of theaforesaid request and (ii) such indemnifying party shall not havereimbursed the indemnified party in accordance with such request prior to thedate of such settlement. No indemnifying party shall, without the prior writtenconsent of the indemnified party, such consent not to be unreasonably withheld,effect any settlement, compromise or consent to the entry of judgment in anypending or threatened action, suit or proceeding in respect of which anyindemnified party is or could have been a party and indemnity was or could havebeen sought hereunder by such indemnified party, unless such settlement,compromise or consent includes an unconditional release of such indemnifiedparty from all liability on claims that are the subject matter of such action,suit or proceeding.

 

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### (f)  *Indemnificationfor Directed Shares. *In connectionwith the offer and sale of the Directed Shares, the Company agrees, promptlyupon a request in writing, to indemnify and hold harmless the Underwriters fromand against any and all losses, liabilities, claims, damages and expensesincurred by them as a result of the failure of the Participants to pay for andaccept delivery of Directed Shares which, by the end of the first business dayfollowing the date of this Agreement, were subject to a properly confirmedagreement to purchase.  The Company agreesto indemnify and hold harmless the Designated Underwriter, its officers andemployees, and each person, if any, who controls the Designated Underwriterwithin the meaning of the Securities Act or the Exchange Act against any loss,claim, damage, liability or expense, as incurred, to which such DesignatedUnderwriter or such controlling person may become subject, (i) under thelaws or regulations of foreign jurisdictions where Directed Shares have beenoffered; (ii) which is caused by any untrue statement or alleged untruestatement of a material fact contained in any material prepared by or with theconsent of the Company for distribution to Participants in connection with theDirected Share Program or caused by any omission or alleged omission to state thereina material fact required to be stated therein or necessary to make thestatements therein not misleading; (iii) which is caused by the failure ofany Participant to pay for and accept delivery of Directed Shares that suchParticipant agreed to purchase; (iv) which is related to any Prospectuswrapper delivered in connection with the reservation and sale of DirectedShares; (v) which is caused by the violation of any applicable laws orregulations of federal, state or foreign jurisdictions where Directed Shareshave been offered; or (vi) which is related to, arising out of, or inconnection with the Directed Share Program, other than losses, claims, damages,liabilities or expenses that are finally judicially determined to have resultedfrom the bad faith or gross negligence of the Designated Underwriters.  The indemnity agreement set forth in thisparagraph shall be in addition to any liabilities that the Company mayotherwise have.

###  

# Section 9.  *Contribution.* If the indemnification provided for in Section 8 is for any reasonheld to be unavailable to or otherwise insufficient to hold harmless anindemnified party in respect of any losses, claims, damages, liabilities orexpenses referred to therein, then each indemnifying party shall contribute tothe aggregate amount paid or payable by such indemnified party, as incurred, asa result of any losses, claims, damages, liabilities or expenses referred totherein (i) in such proportion as is appropriate to reflect the relativebenefits received by the Company and the Selling Stockholder, on the one hand,and the Underwriters, on the other hand, from the offering of the Common Sharespursuant to this Agreement or (ii) if the allocation provided by clause (i) aboveis not permitted by applicable law, in such proportion as is appropriate toreflect not only the relative benefits referred to in clause (i) above butalso the relative fault of the Company and the Selling Stockholder, on the onehand, and the Underwriters, on the other hand, in connection with the statementsor omissions or inaccuracies in the representations and warranties herein whichresulted in such losses, claims, damages, liabilities or expenses, as well asany other relevant equitable considerations. The relative benefits received by the Company and the SellingStockholder, on the

 

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# one hand, and the Underwriters, on the other hand, in connection withthe offering of the Common Shares pursuant to this Agreement shall be deemed tobe in the same respective proportions as the total net proceeds from theoffering of the Common Shares pursuant to this Agreement (before deductingexpenses) received by the Company and the Selling Stockholder, and the totalunderwriting discount received by the Underwriters, in each case as set forthon the front cover page of the Prospectus bear to the aggregate initialpublic offering price of the Common Shares as set forth on such cover.  The relative fault of the Company and theSelling Stockholder, on the one hand, and the Underwriters, on the other hand,shall be determined by reference to, among other things, whether any suchuntrue or alleged untrue statement of a material fact or omission or allegedomission to state a material fact or any such inaccurate or alleged inaccuraterepresentation or warranty relates to information supplied by the Company orthe Selling Stockholder, on the one hand, or the Underwriters, on the otherhand, and the parties’ relative intent, knowledge, access to information andopportunity to correct or prevent such statement or omission.

#  

The amount paid or payable by a party as aresult of the losses, claims, damages, liabilities and expenses referred toabove shall be deemed to include, subject to the limitations set forth in Section 8(d),any legal or other fees or expenses reasonably incurred by such party inconnection with investigating or defending any action or claim.  The provisions set forth in Section 8(d) withrespect to notice of commencement of any action shall apply if a claim forcontribution is to be made under this Section 9; provided, however, thatno additional notice shall be required with respect to any action for whichnotice has been given under Section 8(d) for purposes ofindemnification.

 

The Company, the Selling Stockholder and theUnderwriters agree that it would not be just and equitable if contributionpursuant to this Section 9 were determined by pro rata allocation (even ifthe Underwriters were treated as one entity for such purpose) or by any othermethod of allocation which does not take account of the equitableconsiderations referred to in this Section 9.

 

Notwithstanding the provisions of this Section 9,no Underwriter shall be required to contribute any amount in excess of theunderwriting commissions received by such Underwriter in connection with theCommon Shares underwritten by it and distributed to the public. No personguilty of fraudulent misrepresentation (within the meaning of Section 11(f) ofthe Securities Act) shall be entitled to contribution from any person who wasnot guilty of such fraudulent misrepresentation. The Underwriters’ obligationsto contribute pursuant to this Section 9 are several, and not joint, inproportion to their respective underwriting commitments as set forth oppositetheir names in Schedule A. For purposes of this Section 9, eachofficer and employee of an Underwriter and each person, if any, who controls anUnderwriter within the meaning of the Securities Act and the Exchange Act shallhave the same rights to contribution as such Underwriter, and each director ofthe Company, each officer of the Company who signed the Registration Statement,and each person, if any, who controls the Company with the meaning of theSecurities Act and the Exchange Act shall have the same rights to contributionas the Company.

 

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Notwithstanding any other provision of thisAgreement, the liability of the Selling Stockholder to contribute pursuant to Section 9shall be limited to the net proceeds received by the Selling Stockholder fromthe offering of the Optional Common Shares sold by the Selling Stockholderpursuant to this Agreement.

 

# Section 10.  *Default of One or More of the Several Underwriters.*  If, on the First Closing Date or the SecondClosing Date, as the case may be, any one or more of the several Underwritersshall fail or refuse to purchase Common Shares that it or they have agreed topurchase hereunder on such date, and the aggregate number of Common Shareswhich such defaulting Underwriter or Underwriters agreed but failed or refusedto purchase does not exceed 10% of the aggregate number of the Common Shares tobe purchased on such date, the other Underwriters shall be obligated,severally, in the proportions that the number of Firm Common Shares set forthopposite their respective names on Schedule A bears to the aggregatenumber of Firm Common Shares set forth opposite the names of all suchnon-defaulting Underwriters, or in such other proportions as may be specifiedby the Representatives with the consent of the non-defaulting Underwriters, topurchase the Common Shares which such defaulting Underwriter or Underwritersagreed but failed or refused to purchase on such date. If, on the First ClosingDate or the Second Closing Date, as the case may be, any one or more of theUnderwriters shall fail or refuse to purchase Common Shares and the aggregatenumber of Common Shares with respect to which such default occurs exceeds 10%of the aggregate number of Common Shares to be purchased on such date, andarrangements satisfactory to the Representatives and the Company for thepurchase of such Common Shares are not made within 48 hours after such default,this Agreement shall terminate without liability of any party to any other partyexcept that the provisions of Section 4, Section 6 (to the extent thetermination pursuant to Section 10 is not as a result of (a) adefault by a Defaulting Representative or (b) a default by a DefaultingRepresentative and one or more other defaulting Underwriters that is not aDefaulting Representative), Section 8 and Section 9 shall at alltimes be effective and shall survive such termination. In any such case eitherthe Representatives or the Company shall have the right to postpone the FirstClosing Date or the Second Closing Date, as the case may be, but in no eventfor longer than seven days in order that the required changes, if any, to theRegistration Statement and the Prospectus or any other documents orarrangements may be effected.

#  

As used in this Agreement, the term “Underwriter”shall be deemed to include any person substituted for a defaulting Underwriterunder this Section 10.  Any actiontaken under this Section 10 shall not relieve any defaulting Underwriterfrom liability in respect of any default of such Underwriter under thisAgreement.

 

# Section 11.  *Termination of this Agreement.*  Prior to the First Closing Date thisAgreement may be terminated by the Representatives by notice given to theCompany if at any time (i) trading or quotation in any of the Company’ssecurities shall have been suspended or limited by the Commission or by theNASDAQ National Market, or trading in securities generally on either the NASDAQStock Market or the New York Stock Exchange shall have been suspended or limited,or minimum or maximum prices shall have been generally established on any ofsuch stock exchanges

 

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# by the Commission or the NASD; (ii) a general banking moratoriumshall have been declared by any of federal or New York, Delaware or Californiaauthorities; (iii) there shall have occurred any outbreak or escalation ofnational or international hostilities or any crisis or calamity, or any changein the United States or international financial markets, or any substantialchange or development involving a prospective substantial change in UnitedStates’ or international political, financial or economic conditions, as in thejudgment of the Representatives is material and adverse and makes it impracticableto market the Common Shares in the manner and on the terms described in theProspectus or to enforce contracts for the sale of securities; (iv) in thecommercially reasonable judgment of the Representatives there shall haveoccurred any Material Adverse Change; or (v) the Company shall havesustained a loss by strike, fire, flood, earthquake, accident or other calamityof such character as in the reasonable judgment of the Representatives mayinterfere materially with the conduct of the business and operations of theCompany regardless of whether or not such loss shall have been insured.  Any termination pursuant to this Section 11shall be without liability on the part of (a) the Company or the SellingStockholder to any Underwriter, except that the Company and the SellingStockholder shall be obligated to reimburse the expenses of the Representativesand the Underwriters pursuant to Sections 4 and 6 hereof, (b) anyUnderwriter to the Company or the Selling Stockholder or (c) of any partyhereto to any other party except that the provisions of Section 8 and Section 9shall at all times be effective and shall survive such termination.

#  

# Section 12.  *Representations and Indemnities to Survive Delivery.*  The respective indemnities, agreements,representations, warranties and other statements of ev3 LLC, the Company, theirrespective officers, the Selling Stockholder and the several Underwriters setforth in or made pursuant to this Agreement shall remain operative and in fullforce and effect, regardless of (i) any investigation, or statement as tothe results thereof, made by or on behalf of any Underwriter, the officers oremployees of any Underwriter or any person controlling any Underwriter, ev3LLC, the Company, the officers or employees of ev3 LLC and the Company or anyperson controlling ev3 LLC or the Company, or the Selling Stockholder, (ii) acceptanceof the Common Shares and payment for them hereunder and (iii) terminationof this Agreement.

#  

# Section 13.  *Notices.*  Allcommunications hereunder shall be in writing and shall be mailed, handdelivered or telecopied and confirmed to the parties hereto as follows:

#  

If to the Representatives:

 

Piper Jaffray & Co.800 Nicollet MallSuite 800Minneapolis, MN 55402Facsimile:  (415) 277-1551Attention:   Jeffrey A. Hoffman

 

and

 

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Banc of America Securities LLC9 West 57th StreetNew York, NY 10019Facsimile:  (212) 933-2217Attention:  Thomas M. Morrison

 

witha copy to:

 

Banc of America Securities LLC9 West 57th StreetNew York, New York 10019Facsimile:  (212) 583-8567Attention:  Legal Department

 

witha copy to:

 

Willkie Farr & Gallagher LLP787 Seventh AvenueNew York, NY 10019Facsimile:  (212) 728-9222Attention:  Steven J. Gartner, Esq.

 

If to the Company:

 

ev3 Inc.4600 Nathan Lane NorthPlymouth, MN 55442Facsimile:  (763) 398-7240Attention:  L. Cecily Hines, Esq.

 

witha copy to:

 

King & Spalding LLP1185 Avenue of the Americas LLPNew York, NY 10036Facsimile:  (212) 556-2222Attention:   Tracy Kimmel, Esq.

 

If to the Selling Stockholder:

 

Dale A.Spencer503 North FerndaleWayzata, MN 55391

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Facsimile:  (952) 449-9011

 

and

 

ev3 Inc.

4600 NathanLane North

Plymouth, MN55442

Facsimile:  (763) 398-7240Attention:  L. Cecily Hines, Esq.

 

witha copy to:

 

OppenheimerWolff & Donnelly LLP

Plaza VIIBuilding, Suite 3300

45 SouthSeventh Street

Minneapolis,MN 55402

Facsimile:  (612) 607-7100

Attention: D.William Kaufman Esq.

 

Any party hereto may change the address forreceipt of communications by giving written notice to the others.

 

# Section 14.  *Successors.* This Agreement will inure to the benefit of and be binding upon theparties hereto, including any substitute Underwriters pursuant to Section 10hereof, and to the benefit of the employees, officers and directors andcontrolling persons referred to in Section 8 and Section 9, and ineach case their respective successors, and personal representatives, and noother person will have any right or obligation hereunder. The term “successors”shall not include any purchaser of the Common Shares as such from any of theUnderwriters merely by reason of such purchase.

#  

# Section 15.  *Partial Unenforceability.*  The invalidity or unenforceability of anySection, paragraph or provision of this Agreement shall not affect the validityor enforceability of any other Section, paragraph or provision hereof. If anySection, paragraph or provision of this Agreement is for any reason determinedto be invalid or unenforceable, there shall be deemed to be made such minorchanges (and only such minor changes) as are necessary to make it valid andenforceable.

#  

# Section 16.  *Governing Law Provisions.*

#  

### (a)  *GOVERNINGLAW.*  THIS AGREEMENT SHALL BEGOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OFNEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.

 

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### (b)  *Consent to Jurisdiction.*  Any legal suit, action or proceeding arisingout of or based upon this Agreement or the transactions contemplated hereby maybe instituted in the federal courts of the United States of America located inthe City of Minneapolis and County of Hennepin or the courts of the State ofMinnesota in each case located in the City of Minneapolis and County ofHennepin (collectively, the “Specified Courts”), and each party irrevocablysubmits to the exclusive jurisdiction (except for proceedings instituted inregard to the enforcement of a judgment of any such court, as to which suchjurisdiction is non-exclusive) of such courts in any such suit, action orproceeding.  Service of any process,summons, notice or document by mail to such party’s address set forth aboveshall be effective service of process for any suit, action or other proceedingbrought in any such court.  The partiesirrevocably and unconditionally waive any objection to the laying of venue ofany suit, action or other proceeding in the Specified Courts and irrevocablyand unconditionally waive and agree not to plead or claim in any such courtthat any such suit, action or other proceeding brought in any such court hasbeen brought in an inconvenient forum.

###  

# Section 17.  *Failure of the Selling Stockholder to Sell and Deliver Optional CommonShares.** *If the Selling Stockholder shallfail to sell and deliver to the Underwriters the Common Shares to be sold anddelivered by the Selling Stockholder pursuant to this Agreement at the FirstClosing Date or the Second Closing Date, then the Underwriters shall have theright, by written notice from the Representatives to the Company and theSelling Stockholder, to postpone the First Closing Date or the Second ClosingDate, as the case may be, but in no event for longer than seven days in orderthat the required changes, if any, to the Registration Statement and theProspectus or any other documents or arrangements may be effected.

#  

# Section 18.  *General Provisions.* This Agreement constitutes the entire agreement of the parties to thisAgreement and supersedes all prior written or oral and all contemporaneous oralagreements, understandings and negotiations with respect to the subject matterhereof.  This Agreement may be executedin two or more counterparts, each one of which shall be an original, with thesame effect as if the signatures thereto and hereto were upon the sameinstrument. This Agreement may not be amended or modified unless in writing byall of the parties hereto, and no condition herein(express or implied) may be waived unless waived in writing by each party whomthe condition is meant to benefit. The Section headings herein are for theconvenience of the parties only and shall not affect the construction orinterpretation of this Agreement.

 

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Each of the parties hereto acknowledges thatit is a sophisticated business person who was adequately represented by counselduring negotiations regarding the provisions hereof, including, withoutlimitation, the indemnification provisions of Section 8 and the contributionprovisions of Section 9, and is fully informed regarding said provisions.Each of the parties hereto further acknowledges that the provisions of Sections8 and 9 hereto fairly allocate the risks in light of the ability of the partiesto investigate the Company, its affairs and its business in order to assurethat adequate disclosure has been made in the Registration Statement, thePreliminary Prospectus and the Prospectus (and any amendments and supplementsthereto), as required by the Securities Act and the Exchange Act.

 

[SIGNATURE PAGE FOLLOWS]

 

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If the foregoing is in accordance with yourunderstanding of our agreement, kindly sign and return to the Company and theCustodian the enclosed copies hereof, whereupon this instrument, along with allcounterparts hereof, shall become a binding agreement in accordance with itsterms.

 
|   | Very truly yours, |
|--------|-------------------|
|   |              |
|   | EV3 INC.          |
|   |              |
|   |              |
|   | By:               | /s/ James M. Corbett |   |
|   |              | Name: James M. Corbett |
|   |              | Title: President and Chief Executive  Officer |
|   |              |
|   |              |
|   | EV3 LLC           |
|   |              |
|   |              |

 
|   | By:                 | /s/ James M. Corbett                          |   |
|--------|---------------------|-----------------------------------------------|--------|
|   |                | Name: James M. Corbett                        |
|   |                | Title: President and Chief Executive  Officer |
|   |                |
|   |                |
|   | /s/ Dale A. Spencer |                                          |
|   | Dale A. Spencer     |

 

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The foregoing Underwriting Agreement ishereby confirmed and accepted by the Representatives as of the date first abovewritten.

 
| PIPER JAFFRAY & CO.      |               |
|-----------------------------------|--------------------|
| BANC OF AMERICA SECURITIES LLC    |               |
|                              |               |
| Acting as  Representatives of the |               |
| several  Underwriters named in    |               |
| the attached  Schedule A.    |               |
|                              |               |
| PIPER JAFFRAY & CO.      |               |
|                              |               |
|                              |               |
| By:                               | /s/ Jeff Hoffman   |   |   |
|                              | Managing  Director |   |
|                              |               |
|                              |               |
| BANC OF AMERICA SECURITIES LLC    |               |
|                              |               |
|                              |               |
| By:                               | /s/ Gray  Hampton  |   |   |
|                              | Managing Director  |   |

 

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SCHEDULE A

 
| **UNDERWRITERS**                  | ** ** | **NUMBER OF FIRM  COMMON SHARES TO  BE PURCHASED** | ** ** |
|-----------------------------------|------------|----------------------------------------------------|------------|
| Piper Jaffray & Co.      |       | 4,117,750                                          |       |
| Banc of America Securities LLC    |       | 4,117,750                                          |       |
| Bear, Stearns & Co. Inc. |       | 2,353,000                                          |       |
| Thomas Weisel Partners LLC        |       | 1,176,500                                          |       |
| Total                             |       | 11,765,000                                         |       |

 

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SCHEDULE B

 
| **Selling Stockholder**                                 | ** ** | **Maximum  Number of  Optional  Common Shares  to be Sold** | ** ** |
|---------------------------------------------------------|------------|-------------------------------------------------------------|------------|
| Dale A.  Spencer  503 North Ferndale  Wayzata, MN 55391 |       | 35,900                                                      |       |

 

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