Common use of Alternative Merger Structure Clause in Contracts

Alternative Merger Structure. (a) Notwithstanding anything in this Agreement to the contrary, in the event that counsel for ev3 or FoxHollow is unable to deliver the tax opinion set forth in the closing conditions in Sections 6.2(e) and 6.3(c), respectively, ev3 shall effect the Second Merger, as described in Section 1.4(b), provided that such counsel has indicated that assuming the Second Merger will be effected, such counsel will be able to deliver such tax opinion. (b) Immediately following the Effective Time, as part of a single overall transaction with the Merger described in Section 1.3 and pursuant to an integrated plan, the Surviving Corporation of the Merger shall be merged with and into, at ev3’s election, ev3 or a wholly-owned subsidiary of ev3 (which shall be either a corporation or a limited liability company) (such wholly-owned subsidiary of ev3 is referred to herein as “Newco” and such merger is referred to herein as the “Second Merger”). Following the Second Merger, Newco or ev3, as applicable, shall continue as the surviving entity. If the Second Merger is consummated, where applicable (i) the term “Merger” shall refer to the Merger described in Section 1.3 and the Second Merger, taken together as an integrated transaction; and (ii) the term “Surviving Corporation” shall refer to either Newco or ev3 as the surviving entity after the Second Merger.