Exhibit 4.2


 


Execution Copy


 


REGISTRATION RIGHTS AGREEMENT


 


REGISTRATION
RIGHTS AGREEMENT, dated as of June 21, 2005 (the “Agreement”),
among the institutional investors whose names and addresses appear from time to
time on Schedule I hereto (the “Institutional Investors”);
the investors whose names and addresses appear from time to time on Schedule II
hereto (the “Management Investors”); and ev3 Inc., a Delaware corporation
(the “Company”).  The
Institutional Investors and the Management Investors are hereinafter
collectively referred to as the “Investors.”


 


R  E  C  I  T  A
L  S


 


WHEREAS, the
Investors were formerly members of ev3 LLC, a Delaware limited liability
company (“ev3 LLC”);


 


WHEREAS, in
contemplation of an Initial Public Offering (as defined below), ev3 LLC merged
with and into the Company (the “Merger”);


 


WHEREAS, as a
result of the Merger, the Investors are holders of common stock, par value
$0.01 per share (“Common Stock”), of the Company; and


 


WHEREAS, the
Company has agreed to grant the Investors certain registration rights; and


 


WHEREAS, the
Company and the Investors desire to define the registration rights of the
Investors on the terms and subject to the conditions herein set forth.


 


NOW,
THEREFORE, in consideration of the foregoing premises and for other good and
valuable consideration, the parties hereby agree as follows:


 


SECTION 1.  DEFINITIONS


 


As used in
this Agreement, the following terms have the respective meaning set forth
below:


 


Commission:  shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act;


 


Exchange Act:  shall mean the Securities Exchange Act of
1934, as amended (or any successor act), and the rules and regulations
promulgated thereunder;


 


Holder:  shall mean any holder of Registrable
Securities;


 





















 


Initial Public
Offering:  shall
mean the initial public offering of shares of Common Stock pursuant to a
registration under the Securities Act;


 


Initiating
Holder:  shall
mean any Holder or Holders who in the aggregate are Holders of more than 50% of
the then outstanding Registrable Securities;


 


Person:  shall mean an individual, partnership,
joint-stock company, corporation, trust or unincorporated organization, and a
government or agency or political subdivision thereof;


 


Register,
Registered and Registration: 
shall mean a registration effected by preparing and filing a
registration statement in compliance with the Securities Act (and any
post-effective amendments filed or required to be filed) and the declaration or
ordering of effectiveness of such registration statement;


 


Registrable
Securities: 
shall mean (A) shares of Common Stock held by the Investors, (B) any
additional shares of Common Stock acquired by the Investors and (C) any
stock of the Company issued to the Investors as a dividend or other
distribution with respect to, or in exchange for or in replacement of, the
shares of Common Stock referred to in clause (A) or (B);


 


Registration
Expenses:  shall
mean all expenses incurred by the Company in compliance with Section 2(a),
(b) and (c) hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, fees and expenses of one counsel for all of the
Holders, blue sky fees and expenses and the expense of any special audits
incident to or required by any such registration (but excluding the
compensation of regular employees of the Company, which shall be paid in any
event by the Company);


 


Securities Act:  shall mean the Securities Act of 1933, as
amended (or any successor act), and the rules and regulations promulgated
thereunder;


 


Security,
Securities: 
shall have the meaning set forth in Section 2(1) of the
Securities Act; and


 


Selling
Expenses:  shall
mean all underwriting discounts and selling commissions applicable to the sale
of Registrable Securities and all fees and disbursements of counsel for each of
the Holders other than fees and expenses of one counsel for all the Holders.


 


SECTION 2.  REGISTRATION RIGHTS


 


(a)           Requested
Registration.


 


(i)            Request
for Registration.  If the Company
shall receive from an Initiating Holder, at any time after the Initial Public
Offering, a written request that the Company


 


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effect any registration with respect to all or a part of the
Registrable Securities, the Company will:


 


(1)           promptly
give written notice of the proposed registration, qualification or compliance
to all other Holders; and


 


(2)           as
soon as practicable, use its reasonable best efforts to effect such
registration (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder
or Holders joining in such request as are specified in a written request
received by the Company within ten (10) business days after written notice
from the Company is given under Section 2(a)(i)(1) above; provided
that the Company shall not be obligated to effect, or take any action to
effect, any such registration pursuant to this Section 2(a):


 


(A)          In
any particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such registration,
qualification or compliance, unless the Company is already subject to service
in such jurisdiction and except as may be required by the Securities Act or
applicable rules or regulations thereunder;


 


(B)           After
the Company has effected two (2) such registrations pursuant to this Section 2(a) and
such registrations have been declared or ordered effective and the sales of
such Registrable Securities shall have closed;


 


(C)           If
the Registrable Securities requested by all Holders to be registered pursuant
to such request do not have an anticipated aggregate public offering price
(before any underwriting discounts and commissions) of not less than
$10,000,000; or


 


(D)          If
the Company shall furnish to the Initiating Holder a certificate signed by the
President of the Company stating that in the good faith judgment of the Board
of Directors of the Company it would be materially detrimental to the Company
or its stockholders for such registration statement to be filed in the near
future, in which case the Company’s obligation to use its reasonable best
efforts to comply with this Section 2(a) shall be deferred for one or
more periods not to exceed ninety (90) days in the aggregate in any
twelve-month period.


 


The
registration statement filed pursuant to the request of the Initiating Holders
may, subject to the provisions of Section 2(a)(ii) below, include
other securities of the Company which are held by Persons who, by virtue of
agreements with the Company, are entitled to include their


 


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securities in
any such registration (“Other Stockholders”).  In the event any Institutional Investor
requests a registration pursuant to this Section 2(a) in connection
with a distribution of Registrable Securities to its partners or members, the
registration shall provide for the resale by such partners or members, if
requested by such Institutional Investor.


 


The
registration rights set forth in this Section 2 may be assigned, in whole
or in part, to any transferee of Registrable Securities (who shall be bound by
all obligations of this Agreement).


 


(ii)           Underwriting.  If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, then they shall so advise the Company as a part of their request
made pursuant to Section 2(a).


 


If Other
Stockholders request inclusion in such registration, then the Holders shall
offer to include the securities of such Other Stockholders in the underwriting
and may condition such offer on their acceptance of the further applicable
provisions of this Section 2.  The
Holders whose shares are to be included in such registration and the Company
shall (together with all Other Stockholders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected for such underwriting by the Initiating Holders and reasonably
acceptable to the Company.  Notwithstanding
any other provision of this Section 2(a), if the representative advises
the Holders in writing that marketing factors require a limitation on the
number of shares to be underwritten, the securities of the Company held by
Other Stockholders shall be excluded from such registration to the extent so
required by such limitation.  If, after
the exclusion of such shares, further reductions are still required, the number
of shares included in the registration by each Holder (other than the
Institutional Investors) shall be reduced on a pro rata basis (based on the
number of shares held by such Holder), by such minimum number of shares as is
necessary to comply with such request. 
If, after exclusion of such shares, further reductions are still required,
the number of shares included in the registration by Institutional Investors
shall be reduced on a pro rata basis by such minimum number of shares as is
necessary to comply with such request. 
No Registrable Securities or any other securities excluded from the
underwriting by reason of the underwriter’s marketing limitation shall be
included in such registration.  If any
Other Stockholder who has requested inclusion in such registration as provided
above disapproves of the terms of the underwriting, such Person may elect to
withdraw therefrom by providing prompt written notice to the Company, the
underwriter and the Initiating Holders. 
The securities so withdrawn shall also be withdrawn from registration.  If the underwriter has not limited the number
of Registrable Securities or other securities to be underwritten, then the
Company and officers and directors of the Company may include its or their
securities for its or their own account in such registration if the
representative so agrees and if the number of Registrable Securities and other
securities which would otherwise have been included in such registration and
underwriting will not thereby be limited.


 


(b)           Company
Registration.


 


(i)            Inclusion
in Registration.  If, after the
Initial Public Offering, the Company shall determine to register any of its
equity securities either for its own account or for the account of Other
Stockholders, other than a registration relating solely to


 


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employee benefit plans, or a registration relating solely to a
Commission Rule 145 transaction, or a registration on any registration
form which does not permit secondary sales or does not include substantially
the same information as would be required to be included in a registration
statement covering the sale of Registrable Securities, the Company will:


 


(1)           promptly
give to each of the Holders a written notice thereof (which shall include a
list of the jurisdictions in which the Company intends to attempt to qualify
such securities under the applicable blue sky or other state securities laws);
and


 


(2)           include
in such registration (and any related qualification under blue sky laws or
other compliance), and in any underwriting involved therein, all the
Registrable Securities specified in a written request or requests, made by the
Holders within fifteen (15) days after receipt of the written notice from the
Company described in Section 2(b)(i) above, except as set forth in Section 2(b)(ii) below.  Such written request may specify all or a
part of the Holders’ respective Registrable Securities.  In the event any Holder requests inclusion in
a registration pursuant to this Section 2(b) in connection with a
distribution of Registrable Securities to its partners or members, the registration
shall provide for the resale by such partners or members, if requested by such
Holder.


 


(ii)           Underwriting.  If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise each of the Holders as a part of the written notice
given pursuant to Section 2(b)(i)(1). 
In such event, the right of each of the Holders to registration pursuant
to this Section 2(b) shall be conditioned upon such Holders’
participation in such underwriting and the inclusion of such Holders’
Registrable Securities in the underwriting to the extent provided herein.  The Holders whose shares are to be included
in such registration shall (together with the Company and the Other
Stockholders distributing their securities through such underwriting) enter
into an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for underwriting by the Company.  Notwithstanding any other provision of this Section 2(b),
if the representative determines that marketing factors require a limitation on
the number of shares to be underwritten, the representative may (subject to the
allocation priority set forth below) limit the number of Registrable Securities
to be included in the registration and underwriting to not less than twenty
five percent (25%) of the shares included therein (based on the number of
shares).  The Company shall immediately
advise all holders of securities requesting registration of such limitation,
and the number of such shares of securities that are entitled to be included in
the registration and underwriting shall be allocated in the following
manner:  The securities of the Company
held by officers, directors and Other Stockholders of the Company (other than
Registrable Securities and other than securities held by holders who by
contractual right demanded such registration (“Demanding Holders”))
shall be excluded from such registration and underwriting to the extent
required by such limitation, and, if a limitation on the number of shares is
still required, the number of shares that may be included in the registration
and underwriting by each of the Holders and Demanding Holders shall be reduced,
on a pro rata basis (based on the number of shares held by such Holder), by
such minimum number of shares


 


5





















 


as is necessary to comply with such limitation.  If any of the Holders or any officer,
director or Other Stockholder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by providing prompt written
notice to the Company and the underwriter. 
Any Registrable Securities or other securities excluded or withdrawn
from such underwriting shall be withdrawn from such registration.


 


(c)           Form S-3.  Following the Initial Public Offering, the
Company shall use its best efforts to qualify for registration on Form S-3
for secondary sales.  After the Company
has qualified for the use of Form S-3, the Holders shall have the right to
request three (3) registrations on Form S-3 (such requests shall be
in writing and shall state the number of shares of Registrable
Securities to be disposed of and the intended method of disposition of shares
by such holders), provided that the Company shall not be obligated to
effect, or take any action to effect, any such registration pursuant to this Section 2(c):


 


(i)            Unless
the Holder or Holders requesting registration propose to dispose of shares of
Registrable Securities having an aggregate price to the public (before
deduction of underwriting discounts and expenses of sale) of more than
$1,000,000;


 


(ii)           Within
180 days of the effective date of the most recent registration pursuant to this
Section 2(c) in which securities held by the requesting Holder could
have been included for sale or distribution; or


 


(iii)          In
any particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such registration,
qualification or compliance, unless the Company is already subject to service
in such jurisdiction and except as may be required by the Securities Act or
applicable rules or regulations thereunder.


 


(iv)          If
the Company shall furnish to the Holder or Holders requesting registration a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company it would be materially
detrimental to the Company or its stockholders for such registration statement
to be filed in the near future, in which case the Company’s obligation to use
its best efforts to comply with this Section 2(c) shall be deferred
for one or more periods not to exceed ninety (90) days in the aggregate in any
twelve-month period.


 


The Company
shall give written notice to all Holders of the receipt of a request for
registration pursuant to this Section 2(c) and shall provide a
reasonable opportunity for other Holders to participate in the registration,
provided that if the registration is for an underwritten offering, the terms of
Section 2(a)(ii) shall apply to all participants in such
offering.  Subject to the foregoing, the
Company will use its best efforts to effect promptly the registration of all
shares of Registrable Securities on Form S-3 to the extent requested by
the Holder or Holders thereof for purposes of disposition.  In the event any Holder requests a
registration pursuant to this Section 2(c) in connection with a
distribution of Registrable Securities to its partners or members, the


 


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registration
shall provide for the resale by such partners or members, if requested by such
Holder.


 


(d)           Company Control.  The Company may decline to file a
registration statement referenced in Section 2(b), or withdraw such
registration statement after filing but prior to the effectiveness of the
registration statement, provided that the Company shall promptly notify
each Holder participating in the offering covered by such registration
statement in writing of any such action. 
The Holders shall not be permitted to sell any securities pursuant to Section 2(b) or
2(c) at any time that the Board of Directors of the Company determines in
good faith that it would be materially detrimental to the Company or its
stockholders for sales of securities to be made, provided that (1) the
Company shall promptly notify each Holder in writing of any such action and (2) in
the case of Section 2(c), such periods shall not exceed ninety (90) days
in the aggregate in any twelve-month period.


 


(e)           Expenses of Registration.  All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to this Section 2
shall be borne by the Company, and all Selling Expenses shall be borne by the
Holders of the securities so registered pro rata on the basis of the number of
their shares so registered.


 


(f)            Registration Procedures.  In the case of each registration effected by
the Company pursuant to this Section 2, the Company will keep the Holders,
as applicable, advised in writing as to the initiation of each registration and
as to the completion thereof.  At its
expense, the Company will:


 


(i)            keep
such registration effective for a period of one hundred twenty (120) days or
until the Holders (or in the case of a distribution to the partners or members
of such Holder, such partners or members), as applicable, have completed the
distribution described in the registration statement relating thereto,
whichever first occurs; provided, however, that (A) such 120-day
period shall be extended for a period of time equal to the period during which
the Holders, partners or members, as applicable, refrain from selling any
securities included in such registration in accordance with provisions in Section 2(j)
hereof; and (B) in the case of any registration of Registrable Securities
on Form S-3 which are intended to be offered on a continuous or delayed
basis, such 120-day period shall be extended until all such Registrable
Securities are sold, provided that Rule 415, or any successor rule under
the Securities Act, permits an offering on a continuous or delayed basis, and
provided further that applicable rules under the Securities Act governing
the obligation to file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (y) includes any prospectus required by Section 10(a) of
the Securities Act or (z) reflects facts or events representing a material or
fundamental change in the information set forth in the registration statement,
the incorporation by reference of information required to be included in (y)
and (z) above to be contained in periodic reports filed pursuant to Section 12
or 15(d) of the Exchange Act in the registration statement;


 


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(ii)           furnish
such number of prospectuses and other documents incident thereto as each of the
Holders, as applicable, from time to time may reasonably request;


 


(iii)          notify
each Holder of Registrable Securities covered by such registration at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and


 


(iv)          furnish,
on the date that such Registrable Securities are delivered to the underwriters
for sale, if such securities are being sold through underwriters or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (1) an
opinion, dated as of such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering and reasonably satisfactory to
a majority in interest of the Holders participating in such registration,
addressed to the underwriters, if any, and to the Holders participating in such
registration and (2) a letter, dated as of such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters
in an underwritten public offering and reasonably satisfactory to a majority in
interest of the Holders participating in such registration, addressed to the underwriters,
if any, and if permitted by applicable accounting standards, to the Holders
participating in such registration.


 


(g)           Indemnification.


 


(i)            To
the fullest extent permitted by law, the Company will indemnify each of the
Holders, as applicable, each of its officers, directors, partners and members,
and each Person controlling each of the Holders, with respect to each
registration which has been effected pursuant to this Section 2, and each
underwriter, if any, and each Person who controls any underwriter, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular or other document
(including any related registration statement, notification or the like)
incident to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading, or any violation by the Company of the Securities Act or the
Exchange Act or any rule or regulation thereunder applicable to the
Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance, and will
reimburse each of the Holders, each of its officers, directors, partners and
members, and each Person controlling each of the Holders, each such underwriter
and each Person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection


 


8





















 


with investigating and defending any such claim, loss, damage,
liability or action, provided that the Company will not be liable in any such
case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission based upon
written information furnished to the Company by the Holders or underwriter and
stated to be specifically for use therein.


 


(ii)           Each
of the Holders will, if Registrable Securities held by it are included in the
securities as to which such registration, qualification or compliance is being
effected, indemnify the Company, each of its directors and officers and each
underwriter, if any, of the Company’s securities covered by such a registration
statement, each Person who controls the Company or such underwriter, each Other
Stockholder and each of their officers, directors, partners and members, and
each Person controlling such Other Stockholder against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering circular or
other document made by such Holder in writing, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements by such Holder therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading, and will reimburse the Company and such Other Stockholders,
directors, officers, partners, members, Persons, underwriters or control
Persons for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by such Holder and stated to be specifically for use therein;
provided, however, that the obligations of each of the Holders hereunder shall
be limited to an amount equal to the net proceeds to such Holder of securities
sold as contemplated herein.


 


(iii)          Each
party entitled to indemnification under this Section 2(g) (the “Indemnified
Party”) shall give notice to the party required to provide indemnification
(the “Indemnifying Party”) promptly after such Indemnified Party has
actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld) and the Indemnified Party may participate in such
defense at such party’s expense (unless the Indemnified Party shall have
reasonably concluded that there may be a conflict of interest between the
Indemnifying Party and the Indemnified Party in such action, in which case the
fees and expenses of counsel shall be at the expense of the Indemnifying
Party), and provided further that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 2 unless the Indemnifying Party is
materially prejudiced thereby.  No
Indemnifying Party, in the defense of any such claim or litigation shall,
except with the consent of each Indemnified


 


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Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation. 
Each Indemnified Party shall furnish such information regarding itself
or the claim in question as an Indemnifying Party may reasonably request in
writing and as shall be reasonably required in connection with the defense of
such claim and litigation resulting therefrom.


 


(iv)          If
the indemnification provided for in this Section 2(g) is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage or expense referred to herein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, liability, claim, damage or expense in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and of the Indemnified Party on the other in connection with the
statements or omissions which resulted in such loss, liability, claim, damage
or expense, as well as any other relevant equitable considerations.  The relative fault of the Indemnifying Party
and of the Indemnified Party shall be determined by reference to, among other
things, whether the untrue (or alleged untrue) statement of a material fact or
the omission (or alleged omission) to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified Party and
the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.


 


(v)           Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection
with any underwritten public offering contemplated by this Agreement are in
conflict with the foregoing provisions, the provisions in such underwriting
agreement shall be controlling.


 


(vi)          The
foregoing indemnity agreement of the Company and Holders is subject to the
condition that, insofar as they relate to any loss, claim, liability or damage
arising out of a statement made in or omitted from a preliminary prospectus but
eliminated or remedied in the amended prospectus on file with the Commission at
the time the registration statement in question becomes effective or the
amended prospectus filed with the Commission pursuant to Commission Rule 424(b) (the
“Final Prospectus”), such indemnity or contribution agreement shall not
inure to the benefit of any underwriter or Holder if a copy of the Final
Prospectus was furnished to the underwriter and was not furnished to the Person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act.


 


(h)           Information
by the Holders.


 


(i)            Each
of the Holders holding securities included in any registration shall furnish to
the Company such information regarding such Holder and the distribution
proposed by such Holder as the Company may reasonably request in writing and as
shall


 


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be reasonably required in connection with any registration,
qualification or compliance referred to in this Section 2.


 


(ii)           In
the event that, either immediately prior to or subsequent to the effectiveness
of any registration statement, any Holder shall distribute Registrable
Securities to its partners or members, such Holder shall so advise the Company
and provide such information as shall be necessary to permit an amendment to
such registration statement to provide information with respect to such
partners or members, as selling securityholders.  Promptly following receipt of such
information, the Company shall file an appropriate amendment to such
registration statement reflecting the information so provided.  Any incremental expense to the Company
resulting from such amendment shall be borne by such Holder.


 


(i)            Rule 144
Reporting.


 


With a view to
making available the benefits of certain rules and regulations of the
Commission which may permit the sale of restricted securities to the public
without registration, the Company agrees to:


 


(i)            make
and keep public information available as those terms are understood and defined
in Rule 144 under the Securities Act (“Rule 144”), at all
times from and after ninety (90) days following the effective date of the first
registration under the Securities Act filed by the Company for an offering of
its securities to the general public;


 


(ii)           use
its best efforts to file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act at any time after it has become subject to such reporting
requirements; and


 


(iii)          so
long as the Holder owns any Registrable Securities, furnish to the Holder upon
request, a written statement by the Company as to its compliance with the
reporting requirements of Rule 144 (at any time from and after ninety (90)
days following the effective date of the first registration statement filed by
the Company for an offering of its securities to the general public), and of
the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so filed
as the Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing the Holder to sell any such securities
without registration.


 


(j)            “Market Stand-off” Agreement.  Each of the Holders agrees, if requested by
the Company and an underwriter of equity securities of the Company, not to sell
or otherwise transfer or dispose of any Registrable Securities held by such
Holder during (A) the 180-day period following the effective date of a
registration statement of the Company filed under the Securities Act, provided
that (i) such agreement only applies to the Initial Public Offering and (ii) all
officers and directors of the Company enter into similar agreements and (B) the
90-day period following the effective date of a registration statement of the
Company filed under the Securities Act, provided that (i) such agreement
only applies to the first two registration


 


11





















 


statements of the Company filed
after the Initial Public Offering and (ii) all officers and directors of
the Company enter into similar agreements.


 


If requested by the underwriters, the Holders shall execute a separate
agreement to the foregoing effect.  The
Company may impose stop-transfer instructions with respect to the shares (or
securities) subject to the foregoing restriction until the end of said 180-day
period or 90-day period, as applicable. 
The provisions of this Section 2(j) shall be binding upon any
transferee who acquires Registrable Securities.


 


(k)           Termination.  The registration rights set forth in this Section 2
shall not be available to any Holder if, (i) in the opinion of counsel to
the Company, all of the Registrable Securities then owned by such Holder could
be sold in any 90-day period pursuant to Rule 144 (without giving effect
to the provisions of Rule 144(k)) or (ii) all of the Registrable
Securities held by such Holder have been sold in a registration pursuant to the
Securities Act or pursuant to Rule 144.


 


SECTION 3.  MISCELLANEOUS


 


(a)           Directly or Indirectly.  Where any provision in this Agreement refers
to action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.


 


(b)           Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed entirely within such State.


 


(c)           Section Headings.  The headings of the sections and subsections
of this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.


 


(d)           Notices.


 


(i)            All
communications under this Agreement shall be in writing and shall be delivered
by hand or facsimile or mailed by overnight courier or by registered or
certified mail, postage prepaid:


 


(1)           if
to the Company, at: ev3 Inc., 4600 Nathan Lane North, Plymouth, Minnesota  55442 (facsimile: (763) 398-7240), Attention:
L. Cecily Hines, or at such other address or facsimile number as it may have
furnished the Investors in writing.


 


(2)           if
to the Institutional Investors, at the address or facsimile number listed on Schedule I
hereto, or at such other address or facsimile number as may have been


 


12





















 


furnished the Company in writing, with a copy to Willkie Farr &
Gallagher, 787 Seventh Avenue, New York, NY 10019 (facsimile: (212) 728-8111),
Attention: Steven J. Gartner, Esq.


 


(3)           if
to the Management Investors, at the address or facsimile number listed on Schedule II
hereto, or at such other address or facsimile number as may have been furnished
the Company in writing.


 


(ii)           Any
notice so addressed shall be deemed to be given: if delivered by hand or
facsimile, on the date of such delivery; if mailed by courier, on the first
business day following the date of such mailing; and if mailed by registered or
certified mail, on the third business day after the date of such mailing.


 


(e)           Reproduction of Documents.  This Agreement and all documents relating
thereto, including, without limitation, any consents, waivers and
modifications which may hereafter be executed may be reproduced by the Holders
by any photographic, photostatic, microfilm, microcard, miniature photographic
or other similar process and the Holders may destroy any original document so
reproduced.  The parties hereto agree and
stipulate that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not
the original is in existence and whether or not such reproduction was made by
the Holders in the regular course of business) and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.


 


(f)            Successors and Assigns.  This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties.


 


(g)           Entire Agreement; Amendment and
Waiver.  This Agreement constitutes
the entire understanding of the parties hereto and supersedes all prior
understanding among such parties.  This
Agreement may be amended, and the observance of any term of this Agreement may
be waived, with (and only with) the written consent of the Company and the
Holders holding a majority of the then outstanding Registrable Securities.


 


(h)           Severability.  In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not affect the
remaining provisions of this Agreement which shall remain in full force and
effect.


 


(i)            Counterparts.  This Agreement may be executed in one or more
counterparts (including by facsimile), each of which shall be deemed an
original and all of which together shall be considered one and the same
agreement.


 


13





















 


IN WITNESS
WHEREOF, the undersigned have executed this Agreement as of the date first set
forth above.


 


	
   

  	
  ev3 Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James M.
  Corbett

  	
   

  
	
   

  	
  Name:

  	
  James M. Corbett

  
	
   

  	
  Title:

  	
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WARBURG, PINCUS
  EQUITY PARTNERS,

  L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Warburg Pincus Partners LLC,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
  By:

  	
  Warburg Pincus & Co.,

  
	
   

  	
   

  	
   

  	
  its Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Elizabeth H. Weatherman

  	
   

  
	
   

  	
  Name:

  	
  Elizabeth H. Weatherman

  
	
   

  	
  Title:

  	
  Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WARBURG, PINCUS
  NETHERLANDS

  EQUITY PARTNERS I, C.V.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Warburg Pincus Partners LLC

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Warburg Pincus & Co.,

  
	
   

  	
   

  	
   

  	
  its Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Elizabeth H. Weatherman

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Elizabeth H. Weatherman

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Partner

  	
   

  
												



 





















 


	
   

  	
  WARBURG, PINCUS NETHERLANDS

  EQUITY PARTNERS III, C.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Warburg Pincus Partners LLC,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Warburg Pincus & Co.,

  
	
   

  	
   

  	
   

  	
  its Managing Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Elizabeth H. Weatherman

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Elizabeth H. Weatherman

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VERTICAL FUND I,
  L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Vertical Group, L.P.,

  
	
   

  	
   

  	
  General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Richard B. Emmitt

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard B. Emmitt

  	
   

  
	
   

  	
   

  	
  Title:

  	
  General Partner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VERTICAL FUND II,
  L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Vertical Group, L.P.,

  
	
   

  	
   

  	
  General Partner

  
	
   

  	
   

  
	
   

  	
   

  
												



 


	
   

  	
  By:

  	
    /s/ Richard B. Emmitt

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard B. Emmitt

  	
   

  
	
   

  	
   

  	
  Title:

  	
  General Partner

  	
   

  



 





















 


	
   

  	
  /s/ James M. Corbett

  	
   

  
	
   

  	
  James M. Corbett

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  L. Cecily Hines

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Stacy Enxing Seng

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Paul Kapsner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Paul Buckman

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Dale Spencer

  	
   

  
	
   

  	
  Dale Spencer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Rick Olson

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Megan
  Becker

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Piet van
  den Bosch

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Bruce
  Krattenmaker

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Mojdeh
  Poul

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Stewart
  M. Kume

  



 





















 


	
   

  	
   

  	
   

  
	
   

  	
  Paresh A. Gandhi

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Chandra Coughlin

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Martin Hieb

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Thuzar
  Han

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Karen
  Yahnke

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Chad
  Roue

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Michele
  Roggemann

  
	
   

  	
   

  



 





















 


SCHEDULE I


 


Institutional Investors


 


Institutional
Investor’s Name and Address


 


	
  Warburg,
  Pincus Equity Partners, L.P.

  c/o Warburg Pincus & Co.

  466 Lexington Avenue

  New York, NY 10017

  Facsimile: (212) 716-5068

  Attention: Sean D. Carney

  
	
  Elizabeth H.
  Weatherman

  
	
   

  
	
  Warburg,
  Pincus Netherlands Equity Partners

  I, C.V.

  c/o Warburg Pincus & Co.

  466 Lexington Avenue

  New York, NY 10017

  Facsimile: (212) 716-5068

  Attention: Sean D. Carney 

  
	
  Elizabeth H.
  Weatherman

  
	
   

  
	
  Warburg,
  Pincus Netherlands Equity Partners

  III, C.V.

  c/o Warburg Pincus & Co.

  466 Lexington Avenue

  New York, NY 10017

  Facsimile: (212) 716-5068

  Attention: Sean D. Carney

  
	
  Elizabeth H.
  Weatherman

  
	
   

  
	
  Vertical
  Fund I, L.P.

  c/o Vertical Group, L.P.

  25 Deforest Avenue

  Summit, New Jersey 07901

  Facsimile: (908) 273-9434

  Attention: John Runnells

  
	
   

  
	
  Vertical
  Fund II, L.P.

  c/o Vertical Group, L.P.

  25 Deforest Avenue

  Summit, New Jersey 07901

  Facsimile: (908) 273-9434

  Attention: John Runnells

  



 





















 


SCHEDULE II


 


Management Investors


 


Managment
Investor’s Name and Address


 


James M.
Corbett


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile:
(763) 398-7000


 


L. Cecily
Hines


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile: (763) 398-7000


 


Stacy Enxing
Seng


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile:
(763) 398-7000


 


Paul Kapsner


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth, Minnesota  55442


Facsimile:
(763) 398-7000


 


Paul Buckman


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile:
(763) 398-7000


 


Dale A.
Spencer


503 North
Ferndale Road


Wayzata,
Minnesota  55391


 


Rick Olson


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile:
(763) 398-7000


 





















 


Megan Becker


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile:
(763) 398-7000


 


Piet van den Bosch


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile: (763)
398-7000


 


Bruce
Krattenmaker


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile:
(763) 398-7000


 


Mojdeh Poul


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile:
(763) 398-7000


 


Stewart M.
Kume


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile:
(763) 398-7000


 


Paresh A.
Gandhi


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile:
(763) 398-7000


 


Chandra
Coughlin


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile:
(763) 398-7000


 





















 


Martin Hieb


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile:
(763) 398-7000


 


Thuzar Han


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile:
(763) 398-7000


 


Karen Yahnke


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile:
(763) 398-7000


 


Chad Roue


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile: (763) 398-7000


 


Michele
Roggemann


c/o ev3 Inc.


4600 Nathan
Lane North


Plymouth,
Minnesota  55442


Facsimile:
(763) 398-7000