exv10w1



 





Execution Copy




Voting Agreement




     This Voting Agreement (this “Agreement”), is made and entered into as of July 21, 2007, by and
between ev3 Inc., a Delaware corporation (“Parent”), and the undersigned stockholder
(“Stockholder”) of FoxHollow Technologies, Inc., a Delaware corporation (the “Company”).



Recitals




     A. Concurrently with the execution of this Agreement, Parent, Foreigner Merger Sub, Inc., a
Delaware corporation and a wholly owned first-tier subsidiary of Parent (“Merger Sub”), and the
Company are entering into an Agreement and Plan of Merger (as may be amended from time to time, the
“Merger Agreement”), pursuant to which Merger Sub will be merged with and into the Company (such
Merger, as contemplated by the Merger Agreement, being referred to as the “Merger”). Capitalized
terms used but not defined herein shall have the meanings given to them in Annex A hereto.



     B. Stockholder is the record and beneficial owner of such number of outstanding shares of
Company Common Stock as is indicated on the signature pages to this Agreement.



     C. Parent desires Stockholder to agree, and Stockholder is willing to agree, subject to the
terms and conditions hereof, to vote the Shares (as defined in Section 1.1 below), so as to
facilitate consummation of the Merger.



     In consideration of the foregoing and the representations, warranties, covenants and
agreements set forth in this Agreement, the parties agree as follows:


1. Voting of Shares.




     1.1 Shares. The term “Shares” shall mean all issued and outstanding shares of Company
Common Stock owned of record and beneficially owned by Stockholder or over which Stockholder
exercises sole voting power, in each case, as of the date of this Agreement. Stockholder agrees
that any shares of capital stock of the Company that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership or over which Stockholder exercises sole voting
power after the date of this Agreement and prior to the termination of this Agreement pursuant to
Section 4 below shall be subject to the terms and conditions of this Agreement to the same extent
as if they constituted Shares as of the date hereof.



     1.2 Agreement to Vote Shares. Stockholder hereby covenants and agrees that during the
period commencing on the date hereof and continuing until this Agreement terminates pursuant to
Section 4 hereof, at any meeting (whether annual or special and whether or not an adjourned or
postponed meeting) of the stockholders of the Company, however called, and in any action by written
consent of the stockholders of the Company, Stockholder shall appear at the meeting or otherwise
cause any and all Shares to be counted as present thereat for purposes of establishing a quorum and
vote (or cause to be voted) any and all Shares: (i) in favor of the Company Stockholder Proposal
(to the extent it relates solely to the approval of the Merger and the Merger Agreement); and (ii) against any of the following (or any agreement to enter into,
effect, facilitate or support any of the following): (A) any Acquisition Proposal; (B) any merger
agreement or merger (other than the Merger Agreement and the Merger), consolidation,



 









 




combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding
up of or by the Company; or (C) any amendment of the Company’s Certificate of Incorporation or
Bylaws or any other proposal or transaction involving the Company, the purpose of which amendment
or other proposal or transaction is to delay, prevent or nullify the Merger or the transaction
contemplated by the Merger Agreement or change in any manner the voting rights of any capital stock
of the Company (collectively, “Frustrating Transactions”). Stockholder further agrees not to enter
into any written or oral agreement with any person or entity the effect of which would be
inconsistent with or violative of any provision contained in this Section 1.2. Any vote by the
Stockholder that is not in accordance with this Section 1.2 shall be considered null and void.
Notwithstanding anything to the contrary contained herein, nothing in this Agreement shall be
construed to limit or restrict any representative of Stockholder from acting in his or her capacity
as a director of the Company or voting in Stockholder’s sole discretion on any matter other than
those matters referred to in the first sentence of this Section 1.2.




     1.3 Adjustments Upon Changes in Capitalization. In the event of any change in the
number of issued and outstanding shares of Company Common Stock by reason of any stock split,
reverse split, stock dividend (including any dividend or distribution of securities convertible
into Company Common Stock), combination, reorganization, recapitalization or other like change,
conversion or exchange of shares, or any other change in the corporate or capital structure of the
Company, the term “Shares” shall be deemed to refer to and include the Shares as well as all such
stock dividends and distributions and any shares into which or for which any or all of the Shares
may be changed or exchanged.


2. Other Restrictions.




     2.1 Transfers and Other Restrictions. Stockholder represents, covenants and agrees
that, except as contemplated by this Agreement: (i) Stockholder shall not, directly or indirectly,
during the period commencing on the date hereof and continuing until this Agreement terminates
pursuant to Section 4 hereof, (A) offer for sale or agree to sell, transfer, tender, assign,
pledge, hypothecate or otherwise dispose of or enter into any contract, option or other arrangement
or understanding with respect to, or consent to, the offer for sale, sale, transfer, tender,
pledge, hypothecation, encumbrance, assignment or other disposition of, or create any Lien of any
nature whatsoever with respect to, any or all of the Shares or any interest therein or (B) take any
action that could make any of its representations or warranties contained herein untrue or
incorrect or could have the effect of preventing or disabling the Stockholder from performing any
of its obligations hereunder; (ii) Stockholder shall not grant any proxy or power of attorney, or
deposit any Shares into a voting trust or enter into a voting agreement or other arrangement, with
respect to the voting of Shares (each a “Voting Proxy”); and (iii) Stockholder has not granted,
entered into or otherwise created any Voting Proxy which is currently (or which will hereafter
become) effective, and if any Voting Proxy has been created, such Voting Proxy is hereby revoked.



     2.2 No Press Releases. The Stockholder shall not, nor shall the Stockholder authorize
or permit any investment banker, attorney or other adviser or representative of the Stockholder to,
issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement, the Merger or any related transactions without the prior
written consent of Parent, except as may be required by Applicable Law.



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     2.3 No Appraisal Rights. The Stockholder hereby waives, and agrees not to exercise or
assent to, any appraisal rights under Section 262 in connection with the Merger.


3. Representations and Warranties of Stockholder. Stockholder represents and warrants to
Parent that:




     3.1 Authority; Validity. Stockholder has all requisite capacity, power and authority
to enter into this Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Stockholder and the consummation by Stockholder of the
transactions contemplated hereby have been duly and validly authorized by all necessary action on
the part of Stockholder. This Agreement has been duly executed and delivered by Stockholder and,
assuming the due authorization, execution and delivery of this Agreement by Parent, this Agreement
constitutes the legal, valid and binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms subject, as to enforcement of remedies, to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights and remedies of
creditors generally and to the effect of general principles of equity. No consent, approval,
order, authorization or permit of, or registration, declaration or filing with, or notification to,
any Governmental Entity is required to be obtained or made by or with respect to the Stockholder in
connection with the execution, delivery and performance of this Agreement or the consummation of
the transactions contemplated hereby, other than (i) compliance with and filings under the HSR Act,
if applicable to the Stockholder’s receipt in the Merger of Parent Common Stock, and (ii) such
reports under Sections 13(d) and 16 of the Exchange Act as may be required in connection with this
Agreement and the transactions contemplated hereby. If this Agreement is being executed in a
representative or fiduciary capacity with respect to Stockholder, the person signing this Agreement
has full power and authority to enter into and perform this Agreement.



     3.2 Non-Contravention. The execution, delivery and performance of this Agreement does
not, and the consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, contravene, conflict with, or result in any violation of, breach of or
default by (with or without notice or lapse of time, or both) Stockholder under, or give rise to a
right of termination, cancellation or acceleration of any obligation under, or result in the
creation of any Lien (other than pursuant to this Agreement) upon any of the properties or assets
of Stockholder under, any provision of (i) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise or license
applicable to Stockholder or (ii) any judgment, order, decree, statute, law, ordinance, injunction,
rule or regulation applicable to Stockholder or any of Stockholder’s properties or assets, other
than any such conflicts, violations, defaults, rights, or Liens that, individually or in the
aggregate, would not impair the ability of Stockholder to perform Stockholder’s obligations
hereunder or prevent, limit or restrict in any respect the consummation of any of the transactions
contemplated hereby. There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which Stockholder is settlor or trustee or any other person or entity,
including any Governmental Entity, whose consent, approval, order or authorization is required by
or with respect to Stockholder for the execution, delivery and performance of this Agreement by
Stockholder or the consummation by Stockholder of the transactions contemplated hereby.



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     3.3 Title. As of the date hereof, Stockholder is the record and beneficial owner of
and has good and marketable title to the shares of Company Common Stock indicated on the signature
pages hereto, free and clear of any Liens



     3.4 Power. Stockholder has sole voting power and sole power to issue instructions
with respect to the matters set forth in Section 1 and Section 2 hereof and sole power to agree to
all of the matters set forth in this Agreement, in each case with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.


4. Effectiveness; Termination; No Survival. This Agreement shall become effective upon its
execution by Stockholder and Parent. This Agreement may be terminated at any time by mutual
written consent of Stockholder and Parent. This Agreement, and the obligations of Stockholder
hereunder, including, without limitation, Stockholder’s obligations under Section 1 and Section 2
above, shall terminate, without any action by the parties hereto, upon the earlier to occur of the
following: (i) the Effective Time; (ii) such date and time as the Merger Agreement shall have been
validly terminated pursuant to Article VII thereof; and (iii) the entry by the Company into any
amendment or modification to the Merger Agreement that materially and adversely affects Stockholder
that has not been previously approved in writing by Stockholder, provided that, Section 6 shall
survive a termination of this Agreement under clause (i) above. Nothing in this Section 4 shall
relieve any party of liability for breach of this Agreement.



5. Further Assurances. Subject to the terms of this Agreement, from time to time,
Stockholder shall execute and deliver such additional documents and use commercially reasonable
efforts to take, or cause to be taken, all such further actions, and to do or cause to be done, all
things reasonably necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.



6. Miscellaneous.




     6.1 Severability. If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is invalid, void or
unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.



     6.2 Binding Effect and Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but, except as otherwise specifically provided herein, neither
this Agreement nor any of the rights, interests or obligations of the parties hereto may be
assigned by either of the parties without the prior written consent of the other. Any purported
assignment in violation of this Section 6.2 shall be void.



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     6.3 Amendments and Modification. This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written agreement executed by the
parties hereto.



     6.4 Specific Performance; Injunctive Relief; Attorneys Fees. The parties hereto
acknowledge that Parent will be irreparably harmed and that there will be no adequate remedy at law
for a violation of any of the covenants or agreements of Stockholder set forth herein. Therefore,
it is agreed that, in addition to any other remedies that may be available to Parent upon any such
violation, Parent shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law or in equity and
Stockholder hereby irrevocably and unconditionally waives any objection to Parent seeking so to
enforce such covenants and agreements by specific performance, injunctive relief and other means.
If any action, suit or other proceeding (whether at law, in equity or otherwise) is instituted
concerning or arising out of this Agreement or any transaction contemplated hereunder, the
prevailing party shall recover, in addition to any other remedy granted to such party therein, all
such party’s costs and attorneys fees incurred in connection with the prosecution or defense of
such action, suit or other proceeding.



     6.5 Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given upon delivery either personally or by commercial delivery service, or sent
via facsimile (receipt confirmed) to the parties at the following addresses or facsimile numbers
(or at such other address or facsimile numbers for a party as shall be specified by like notice):




     if to Parent, to:


ev3 Inc.

9600 54th Avenue North, Suite 100

Plymouth, MN 55442-21111

Facsimile: (763) 398-7200

Attention: Kevin M. Klemz, Vice President, Secretary and Chief Legal

                 Officer





     with copies to:


Oppenheimer Wolff & Donnelly LLP

Plaza VII, Suite 3300

45 South Seventh Street

Minneapolis, MN 55402

Facsimile: (612) 607-7100

Attention: Bruce A. Machmeier, Esq.





     if to Stockholder, at its address set forth on the signature pages hereto,
with a copy (which shall not constitute notice) to each of:


FoxHollow Technologies, Inc.

740 Bay Road

Redwood City, CA 94063-2469

Facsimile: (650) 839-7920

Attention: John Simpson, M.D.




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and



Wilson Sonsini Goodrich & Rosati

Professional Corporation

650 Page Mill Road

Palo Alto, California 94304

Facsimile: (650) 493-6811

Attention:  Martin W. Korman, Esq.



Robert T. Ishii, Esq.

Philip Oettinger, Esq.




     6.6 Governing Law; Submission to Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof. The parties hereby
irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of
the United States of America located in the State of Delaware for any actions, suits or proceedings
arising out of or relating to this Agreement (and the parties agree not to commence any action,
suit or proceeding relating thereto except in such courts), and further agree that service of any
process, summons, notice or document by U.S. certified mail shall be effective service of process
for any action, suit or proceeding brought against the parties in any such court. The parties
hereby irrevocably and unconditionally waive any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement in the courts of the United States of America
located in the State of Delaware, and hereby further irrevocably and unconditionally waive and
agree not to plead or claim in any such court that any such action, suit or proceeding brought in
any such court has been brought in an inconvenient forum.



     6.7 Entire Agreement; No Third Party Beneficiaries. This Agreement and the Waiver,
Consent and Assumption Agreement constitutes and contains the entire agreement and understanding of
the parties with respect to the subject matter hereof and supersedes any and all prior
negotiations, correspondence, agreements, understandings, duties or obligations between the parties
respecting the subject matter hereof and is not intended to convey upon any Person other than the
parties hereto any rights or remedies hereunder.



     6.8 Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.



     6.9 Captions. The captions to sections of this Agreement have been inserted only for
identification and reference purposes and shall not be used to construe or interpret this
Agreement.



     6.10 Stockholder Capacity. Stockholder has executed this Agreement solely in its
capacity as the record and/or beneficial holder of Shares.



[signature page follows]




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     In Witness Whereof, the parties hereto have caused this Voting Agreement to be executed as of
the date first above written.



	 	 	 	 	 	 	 
	 	 	EV3 Inc.  
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kevin M. Klemz	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Kevin M. Klemz
	 	 	Title: Vice President, Secretary and Chief Legal Officer
	 
	 	 	 	 	 	 
	 	 	Stockholder:
	 
	 	 	 	 	 	 
	 	 	MERCK & CO., INC.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Judy C. Lewent	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Judy C. Lewent
	 	 	Title: Executive Vice President and Chief Financial Officer
	 
	 	 	 	 	 	 
	 	 	Stockholder’s Address for Notice:
	 
	 	 	 	 	 	 
	 	 	One Merck Drive
	 	 	P.O. Box 100, WS3A-65
	 	 	Whitehouse Station, NJ 08889-0100
	 	 	Attention: Office of Secretary
	 	 	Facsimile No.: (908) 735-1246






Outstanding Shares of Company Common Stock Beneficially
Owned by Stockholder:




3,206,318



Options, Warrants or Rights to purchase Company Common Stock
 Beneficially Owned by Stockholder:




 0