COMMON SHARES OTHER THAN THE PRELIMINARY PROSPECTUS, THE PROSPECTUS OR
THE REGISTRATION STATEMENT.
(D)
THE UNDERWRITING AGREEMENT.
THIS AGREEMENT HAS BEEN DULY AUTHORIZED,
EXECUTED AND DELIVERED BY, AND IS A VALID AND BINDING AGREEMENT OF, EV3 LLC AND
THE COMPANY, ENFORCEABLE AGAINST EACH OF EV3 LLC AND THE COMPANY IN ACCORDANCE
WITH ITS TERMS, EXCEPT AS MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM OR SIMILAR LAWS AFFECTING THE RIGHTS AND REMEDIES OF
CREDITORS GENERALLY AND BY THE EFFECT OF GENERAL PRINCIPLES OF EQUITY AND EXCEPT
THAT ANY RIGHTS TO INDEMNITY AND CONTRIBUTION PURSUANT TO SECTIONS 8 AND 9
HEREOF MAY BE LIMITED BY FEDERAL AND STATE SECURITIES LAWS AND PUBLIC POLICY
CONSIDERATIONS.
(E)
AUTHORIZATION OF THE COMMON SHARES.
THE COMMON SHARES TO BE PURCHASED BY
THE UNDERWRITERS FROM THE COMPANY HAVE BEEN DULY AUTHORIZED FOR ISSUANCE AND
SALE PURSUANT TO THIS AGREEMENT AND, WHEN ISSUED AND DELIVERED BY THE COMPANY
AGAINST PAYMENT THEREFOR PURSUANT TO THIS AGREEMENT, WILL BE VALIDLY ISSUED,
FULLY PAID AND NONASSESSABLE.
(F)
NO APPLICABLE REGISTRATION OR OTHER SIMILAR RIGHTS.
THERE ARE NO PERSONS
WITH REGISTRATION OR OTHER SIMILAR RIGHTS TO HAVE ANY EQUITY OR DEBT SECURITIES
REGISTERED FOR SALE UNDER THE REGISTRATION STATEMENT OR INCLUDED IN THE OFFERING
CONTEMPLATED BY THIS AGREEMENT, OTHER THAN THE SELLING STOCKHOLDER WITH RESPECT
TO THE OPTIONAL COMMON SHARES INCLUDED IN THE REGISTRATION STATEMENT, EXCEPT FOR
SUCH RIGHTS AS HAVE BEEN DULY WAIVED OR HAVE BEEN DESCRIBED IN THE PROSPECTUS.
(G)
NO MATERIAL ADVERSE CHANGE.
EXCEPT AS OTHERWISE DISCLOSED IN THE
PROSPECTUS, SUBSEQUENT TO THE RESPECTIVE DATES AS OF WHICH INFORMATION IS GIVEN
IN THE PROSPECTUS: (I) THERE HAS BEEN NO MATERIAL ADVERSE CHANGE, OR ANY
DEVELOPMENT THAT COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE
CHANGE, IN THE CONDITION, FINANCIAL OR OTHERWISE, OR IN THE EARNINGS, BUSINESS,
OPERATIONS OR PROSPECTS, WHETHER OR NOT ARISING FROM TRANSACTIONS IN THE
ORDINARY COURSE OF BUSINESS, OF EV3 LLC, THE COMPANY AND THEIR RESPECTIVE
SUBSIDIARIES, CONSIDERED AS ONE ENTITY (ANY SUCH CHANGE IS CALLED A "MATERIAL
ADVERSE CHANGE"); (II) EV3 LLC, THE COMPANY AND THEIR RESPECTIVE SUBSIDIARIES,
CONSIDERED AS ONE ENTITY, HAVE NOT INCURRED ANY MATERIAL LIABILITY OR
OBLIGATION, INDIRECT, DIRECT OR CONTINGENT, NOT IN THE ORDINARY COURSE OF
BUSINESS NOR ENTERED INTO ANY MATERIAL TRANSACTION OR AGREEMENT NOT IN THE
ORDINARY COURSE OF BUSINESS; AND (III) THERE HAS BEEN NO DIVIDEND OR
DISTRIBUTION OF ANY KIND DECLARED, PAID OR MADE BY EV3 LLC OR THE COMPANY OR,
EXCEPT FOR DIVIDENDS PAID TO EV3 LLC, THE COMPANY OR ANY OF THEIR RESPECTIVE
5
SUBSIDIARIES, ANY OF THEIR RESPECTIVE SUBSIDIARIES ON ANY CLASS OF THEIR
RESPECTIVE CAPITAL STOCK OR REPURCHASE OR REDEMPTION BY THE COMPANY OR ANY OF
ITS SUBSIDIARIES OF ANY CLASS OF THEIR RESPECTIVE CAPITAL STOCK.
(H)
INDEPENDENT ACCOUNTANTS.
PRICEWATERHOUSECOOPERS LLP AND ERNST & YOUNG LLP,
WHICH HAVE EXPRESSED THEIR RESPECTIVE OPINIONS WITH RESPECT TO CERTAIN PORTIONS
(AS INDICATED THEREIN) OF THE COMBINED CONSOLIDATED FINANCIAL STATEMENTS (WHICH
TERM AS USED IN THIS AGREEMENT INCLUDES THE RELATED NOTES THERETO) FILED