SIMILAR LAWS RELATING TO OR AFFECTING THE RIGHTS AND REMEDIES OF CREDITORS
OR BY GENERAL EQUITABLE PRINCIPLES.
(C)
TITLE TO COMMON SHARES TO BE SOLD; ALL AUTHORIZATIONS OBTAINED.
THE
SELLING STOCKHOLDER HAS GOOD AND VALID TITLE TO ALL OF THE MEMBERSHIP UNITS OF
EV3 LLC WHICH WILL BE CONVERTED INTO COMMON SHARES IN CONNECTION WITH THE MERGER
AND MAY BE SOLD BY THE SELLING STOCKHOLDER PURSUANT TO THIS AGREEMENT.
ON THE
FIRST CLOSING DATE AND THE SECOND CLOSING DATE (AS DEFINED BELOW), AS
APPLICABLE, THE SELLING STOCKHOLDER WILL HAVE, GOOD AND VALID TITLE TO ALL OF
THE COMMON SHARES WHICH MAY BE SOLD BY THE SELLING STOCKHOLDER PURSUANT TO THIS
AGREEMENT ON SUCH DATE AND THE LEGAL RIGHT AND POWER, AND ALL AUTHORIZATIONS AND
APPROVALS REQUIRED BY LAW TO ENTER INTO THIS AGREEMENT AND ITS CUSTODY AGREEMENT
AND POWER OF ATTORNEY, TO SELL, TRANSFER AND DELIVER ALL OF THE COMMON SHARES
WHICH MAY BE SOLD BY THE SELLING STOCKHOLDER PURSUANT TO THIS AGREEMENT AND TO
COMPLY WITH ITS OTHER OBLIGATIONS HEREUNDER AND THEREUNDER.
(D)
DELIVERY OF THE COMMON SHARES TO BE SOLD.
DELIVERY OF AND PAYMENT FOR THE
COMMON SHARES WHICH ARE SOLD BY THE SELLING STOCKHOLDER PURSUANT TO THIS
AGREEMENT WILL PASS GOOD AND VALID TITLE TO SUCH COMMON SHARES, FREE AND CLEAR
OF ANY SECURITY INTEREST, MORTGAGE, PLEDGE, LIEN, ENCUMBRANCE OR OTHER CLAIM.
(E)
NON-CONTRAVENTION; NO FURTHER AUTHORIZATIONS OR APPROVALS REQUIRED.
THE
EXECUTION AND DELIVERY BY THE SELLING STOCKHOLDER OF, AND THE PERFORMANCE BY THE
SELLING STOCKHOLDER OF ITS OBLIGATIONS UNDER, THIS AGREEMENT, THE CUSTODY
AGREEMENT AND THE POWER OF ATTORNEY WILL NOT CONTRAVENE OR CONFLICT WITH, RESULT
IN A BREACH OF, OR CONSTITUTE A DEFAULT UNDER, OR REQUIRE THE CONSENT OF ANY
OTHER PARTY TO ANY AGREEMENT OR INSTRUMENT TO WHICH THE SELLING STOCKHOLDER IS A
PARTY OR BY WHICH IT IS BOUND OR UNDER WHICH IT IS ENTITLED TO ANY RIGHT OR
BENEFIT, ANY PROVISION OF APPLICABLE LAW OR ANY JUDGMENT, ORDER, DECREE OR
REGULATION APPLICABLE TO THE SELLING STOCKHOLDER OF ANY COURT, REGULATORY BODY,
ADMINISTRATIVE AGENCY, GOVERNMENTAL BODY OR ARBITRATOR HAVING JURISDICTION OVER
THE SELLING STOCKHOLDER.
NO CONSENT, APPROVAL, AUTHORIZATION OR OTHER ORDER OF,
OR REGISTRATION OR FILING WITH, ANY COURT OR OTHER GOVERNMENTAL AUTHORITY OR
AGENCY, IS REQUIRED FOR THE CONSUMMATION BY THE SELLING
16
STOCKHOLDER OF THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT, EXCEPT SUCH AS
HAVE BEEN OBTAINED OR MADE AND ARE IN FULL FORCE AND EFFECT UNDER THE SECURITIES
ACT, APPLICABLE STATE SECURITIES OR BLUE SKY LAWS AND FROM THE NASD.
(F)
NO REGISTRATION OR OTHER SIMILAR RIGHTS.
THE SELLING STOCKHOLDER DOES NOT
HAVE ANY REGISTRATION OR OTHER SIMILAR RIGHTS TO HAVE ANY EQUITY OR DEBT
SECURITIES REGISTERED FOR SALE BY THE COMPANY UNDER THE REGISTRATION STATEMENT
OR INCLUDED IN THE OFFERING CONTEMPLATED BY THIS AGREEMENT, EXCEPT FOR SUCH
RIGHTS AS ARE DESCRIBED IN THE PROSPECTUS UNDER "SHARES ELIGIBLE FOR FUTURE
SALE" AND "CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS - REGISTRATION
RIGHTS AGREEMENT".
(G)
NO FURTHER CONSENTS, ETC.
NO CONSENT, APPROVAL OR WAIVER