SHARES OF COMMON STOCK WERE ISSUED IN VIOLATION
OF ANY PREEMPTIVE RIGHTS, RIGHTS OF FIRST REFUSAL OR OTHER SIMILAR RIGHTS TO
SUBSCRIBE FOR OR PURCHASE SECURITIES OF EV3 LLC OR THE COMPANY WHICH WERE NOT
PROPERLY WAIVED.
EXCEPT AS SET FORTH IN THAT CERTAIN 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 THE HOLDERS AGREEMENT, DATED AS OF
AUGUST 29, 2003, AMONG THE INVESTORS NAMED THEREIN AND THE COMPANY, THERE ARE NO
AUTHORIZED OR OUTSTANDING OPTIONS, WARRANTS, PREEMPTIVE RIGHTS, RIGHTS OF FIRST
REFUSAL OR OTHER RIGHTS TO PURCHASE, OR EQUITY OR DEBT SECURITIES CONVERTIBLE
INTO OR EXCHANGEABLE OR EXERCISABLE FOR, ANY CAPITAL STOCK OF THE COMPANY OR ANY
OF ITS SUBSIDIARIES OTHER THAN THOSE DESCRIBED IN THE PROSPECTUS OR ISSUED OR
GRANTED AFTER THE DATE THEREOF.
THE DESCRIPTION OF EV3 LLC'S AND THE COMPANY'S
STOCK OPTION, STOCK BONUS AND OTHER STOCK PLANS OR ARRANGEMENTS, AND THE OPTIONS
OR OTHER RIGHTS GRANTED THEREUNDER, SET FORTH IN THE PROSPECTUS ACCURATELY AND
FAIRLY PRESENTS IN ALL MATERIAL RESPECTS THE INFORMATION REQUIRED TO BE SHOWN
WITH RESPECT TO SUCH PLANS, ARRANGEMENTS, OPTIONS AND RIGHTS.
(L)
QUOTATION.
THE COMMON SHARES HAVE BEEN APPROVED FOR INCLUSION ON THE
NASDAQ NATIONAL MARKET, SUBJECT ONLY TO OFFICIAL NOTICE OF ISSUANCE.
(M)
NON-CONTRAVENTION OF EXISTING INSTRUMENTS; NO FURTHER AUTHORIZATIONS OR
APPROVALS REQUIRED.
NEITHER EV3 LLC, THE COMPANY NOR ANY OF THEIR RESPECTIVE
SUBSIDIARIES IS IN VIOLATION OF ITS CHARTER, BY-LAWS OR OTHER ORGANIZATIONAL
DOCUMENTS OR IS IN DEFAULT (OR, WITH THE GIVING OF NOTICE OR LAPSE OF TIME,
WOULD BE IN DEFAULT) ("DEFAULT") UNDER ANY INDENTURE, MORTGAGE, LOAN OR CREDIT
AGREEMENT, NOTE, CONTRACT, LEASE OR OTHER INSTRUMENT TO WHICH EV3 LLC, THE
COMPANY OR ANY OF THEIR RESPECTIVE SUBSIDIARIES IS A PARTY OR BY WHICH ANY OF
THEM MAY BE BOUND, OR TO WHICH ANY OF THE PROPERTY OR ASSETS OF EV3 LLC, THE
COMPANY OR ANY OF THEIR RESPECTIVE SUBSIDIARIES IS SUBJECT (EACH, AN "EXISTING
INSTRUMENT"), EXCEPT FOR SUCH DEFAULTS AS WOULD NOT, INDIVIDUALLY OR IN THE
AGGREGATE, RESULT IN A MATERIAL ADVERSE CHANGE.
EACH OF EV3 LLC'S AND THE
COMPANY'S EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND CONSUMMATION
OF THE TRANSACTIONS CONTEMPLATED HEREBY AND BY THE PROSPECTUS (I) HAVE BEEN DULY
AUTHORIZED BY ALL NECESSARY CORPORATE ACTION AND WILL NOT RESULT IN ANY
VIOLATION OF THE PROVISIONS OF, WITH RESPECT TO EV3 LLC, ITS OPERATING AGREEMENT
OR OTHER ORGANIZATIONAL DOCUMENTS, AND WITH RESPECT TO THE COMPANY, ITS CHARTER
OR BY-LAWS, OR THE ORGANIZATIONAL DOCUMENTS OF ANY OF THEIR SUBSIDIARIES,
(II) WILL NOT CONFLICT WITH OR CONSTITUTE A BREACH OF, OR DEFAULT UNDER, OR
RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE UPON ANY
PROPERTY OR ASSETS OF EV3 LLC, THE COMPANY OR ANY OF THEIR RESPECTIVE
SUBSIDIARIES PURSUANT TO, OR REQUIRE
8
THE CONSENT OF ANY OTHER PARTY TO, ANY EXISTING INSTRUMENT, EXCEPT FOR SUCH
CONSENTS WHICH HAVE BEEN OBTAINED AND FOR SUCH CONFLICTS,