Attention:
Thomas M. Morrison
with a copy to:
Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Facsimile:
(212) 583-8567
Attention:
Legal Department
with a copy to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Facsimile:
(212) 728-9222
Attention:
Steven J. Gartner, Esq.
If to the Company:
ev3 Inc.
4600 Nathan Lane North
Plymouth, MN 55442
Facsimile:
(763) 398-7240
Attention:
L. Cecily Hines, Esq.
with a copy to:
King & Spalding LLP
1185 Avenue of the Americas LLP
New York, NY 10036
Facsimile:
(212) 556-2222
Attention:
Tracy Kimmel, Esq.
If to the Selling Stockholder:
Dale A. Spencer
503 North Ferndale
Wayzata, MN 55391
41
Facsimile:
(952) 449-9011
and
ev3 Inc.
4600 Nathan Lane North
Plymouth, MN 55442
Facsimile:
(763) 398-7240
Attention:
L. Cecily Hines, Esq.
with a copy to:
Oppenheimer Wolff & Donnelly LLP
Plaza VII Building, Suite 3300
45 South Seventh Street
Minneapolis, MN 55402
Facsimile:
(612) 607-7100
Attention: D. William Kaufman Esq.
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
SECTION 14.
SUCCESSORS.
THIS AGREEMENT WILL INURE TO THE BENEFIT OF AND BE
BINDING UPON THE PARTIES HERETO, INCLUDING ANY SUBSTITUTE UNDERWRITERS PURSUANT
TO SECTION 10 HEREOF, AND TO THE BENEFIT OF THE EMPLOYEES, OFFICERS AND
DIRECTORS AND CONTROLLING PERSONS REFERRED TO IN SECTION 8 AND SECTION 9, AND IN
EACH CASE THEIR RESPECTIVE SUCCESSORS, AND PERSONAL REPRESENTATIVES, AND NO
OTHER 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 THE
UNDERWRITERS MERELY BY REASON OF SUCH PURCHASE.
SECTION 15.
PARTIAL UNENFORCEABILITY.
THE INVALIDITY OR UNENFORCEABILITY OF
ANY SECTION, PARAGRAPH OR PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE
VALIDITY OR ENFORCEABILITY OF ANY OTHER SECTION, PARAGRAPH OR PROVISION HEREOF.
IF ANY SECTION, PARAGRAPH OR PROVISION OF THIS AGREEMENT IS FOR ANY REASON
DETERMINED TO BE INVALID OR UNENFORCEABLE, THERE SHALL BE DEEMED TO BE MADE SUCH
MINOR CHANGES (AND ONLY SUCH MINOR CHANGES) AS ARE NECESSARY TO MAKE IT VALID
AND ENFORCEABLE.
SECTION 16.
GOVERNING LAW PROVISIONS.
(A)
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
42
(B)
CONSENT TO JURISDICTION.
ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR BASED UPON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE
INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE
CITY OF MINNEAPOLIS AND COUNTY OF HENNEPIN OR THE COURTS OF THE STATE OF
MINNESOTA IN EACH CASE LOCATED IN THE CITY OF MINNEAPOLIS AND COUNTY OF HENNEPIN
(COLLECTIVELY, THE "SPECIFIED COURTS"), AND EACH PARTY IRREVOCABLY SUBMITS TO
THE EXCLUSIVE JURISDICTION (EXCEPT FOR PROCEEDINGS INSTITUTED IN REGARD TO THE
ENFORCEMENT OF A JUDGMENT OF ANY SUCH COURT, AS TO WHICH SUCH JURISDICTION IS
NON-EXCLUSIVE) OF SUCH COURTS IN ANY