EXHIBIT 3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of December 4, 2003 (the "Agreement"), between
Micro Therapeutics, Inc., a Delaware corporation (the "Company"), and Micro
Investment, LLC, a Delaware limited liability company (the "Stockholder").
W I T N E S S E T H
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the Company and the Investors are entering into a Note Purchase
Agreement, dated as of the date hereof (as such agreement may hereafter be
amended from time to time, the "Purchase Agreement"), which provides for, upon
the terms and subject to the conditions set forth therein, the sale of
$17,000,000 aggregate principal amount of exchangeable promissory notes by the
Company (the "Exchangeable Notes");
WHEREAS, the Exchangeable Notes accrue interest at 7% per annum, which
interest compounds quarterly;
WHEREAS, pursuant to the Purchase Agreement, upon the satisfaction of
certain conditions, the Exchangeable Notes will be exchanged for such number of
shares of Common Stock determined by dividing (i) the aggregate principal
balance on such Exchangeable Notes plus accrued and unpaid interest thereon at
the time of the exchange by (ii) $2.73 (subject to appropriate adjustment in the
event of any stock dividend, stock split, stock distribution or combination,
subdivision, reclassification or other corporate actions having the similar
effect with respect to the Common Stock) (the "Exchange");
WHEREAS, the Company does not currently have sufficient authorized but
unissued shares of Common Stock available to effect the Exchange;
WHEREAS, the issuance of the Second Closing Shares upon the Exchange will
also require a vote in favor of such issuance by the stockholders of the Company
pursuant to NASD rules;
WHEREAS, pursuant to the Purchase Agreement, the Company has agreed to call
a special meeting of its stockholders to approve (i) an amendment to the
Company's Certificate of Incorporation to increase the authorized capital stock
of the Company to 75,000,000 shares, consisting of 70,000,000 shares of Common
Stock and 5,000,000 shares of Preferred Stock (the "Amendment"), (ii) the
issuance of the Second Closing Shares upon exchange of the Exchangeable Notes
and (iii) such other matters as may be necessary or advisable to consummate the
transactions contemplated by the Purchase Agreement;
WHEREAS, as of the date hereof, the Stockholder owns beneficially the
number of shares of Common Stock set forth opposite the Stockholder's name on
Schedule I hereto (all such shares so owned and which may hereafter be acquired
by such Stockholder prior to the termination of this Agreement, whether upon the
exercise of options, conversion of convertible securities, exercise of warrants
or by means of purchase, dividend, distribution or otherwise, being referred to
herein as the Stockholder's "Shares");
WHEREAS, approval of the Amendment by the Company's stockholders is
required in order to consummate the Exchange;
WHEREAS, as a condition to the Investors' willingness to enter into the
Purchase Agreement, the Investors have requested that the Stockholder enter into
this Agreement; and
WHEREAS, in order to induce the Investors to enter into the Purchase
Agreement, the Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
Company and the Stockholder hereby agree as follows:
ARTICLE I.
TRANSFER AND VOTING OF SHARES; AND
OTHER COVENANTS OF THE STOCKHOLDER
SECTION 1.1. Voting of Shares. From the date hereof until termination of
this Agreement pursuant to Section 4.2 hereof (the "Term"), at any meeting of
the stockholders of the Company, however called and at any adjournment or
postponement thereof, and in any action by consent of the stockholders of the
Company, the Stockholder shall (A) appear at such meeting or otherwise cause its
Shares to be counted as present thereat for purposes of establishing a quorum
and (B) vote (or cause to be voted) its Shares in favor of (i) the Amendment,
(ii) the issuance of the Second Closing Shares upon exchange of the Exchangeable
Notes and (iii) such other matters as may be necessary or advisable to
consummate the transactions contemplated by the Purchase Agreement.
SECTION 1.2. No Inconsistent Arrangements. Except as contemplated by this
Agreement, the Stockholder shall not during the Term (i) transfer, or consent to
any transfer of, any or all of the Stockholder's Shares or any interest therein,
or create or permit to exist any lien or other encumbrance on such Shares, (ii)
enter into any contract, option or other agreement or understanding with respect
to any transfer of any or all of such Shares or any interest therein, (iii)
grant any proxy, power-of-attorney or other authorization in or with respect to
such Shares, (iv) deposit such Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares, or (v) take any other
action that would in any way restrict, limit or interfere with the performance
of its obligations hereunder or the transactions contemplated hereby or by the
Purchase Agreement; provided, however, the Stockholder shall be permitted to
transfer any or all of such Shares to its Affiliates, provided that such
Affiliates agree to be bound by the terms of this Agreement.
SECTION 1.3. Proxy; Reliance. The Stockholder hereby revokes any and all
prior proxies or powers of attorney in respect of any of the Stockholder's
Shares and constitutes and appoints the Company, or any nominee of the Company,
with full power of substitution and resubstitution, at any time during the Term,
as the Stockholder's true and lawful attorney and proxy (its "Proxy"), for and
in its name, place and stead, to vote each of such Shares as its Proxy in favor
of the matters set forth in Section 1.1, at every annual, special, adjourned or
postponed
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meeting of the stockholders of the Company, including the right to sign its name
(as stockholder) to any consent, certificate or other document relating to the
Company that the General Corporation Law of the State of Delaware may permit or
require as provided in Section 1.1.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST THROUGHOUT THE TERM.
SECTION 1.4. Stop Transfer. The Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Stockholder's Shares, unless
such transfer is made in compliance with this Agreement.
SECTION 1.5. Additional Shares. The Stockholder hereby agrees, while this
Agreement is in effect, to promptly notify the Company of the number of any new
Shares acquired (whether upon the exercise of options, conversion of convertible
securities, exercise of warrants or by means of purchase, dividend, distribution
or otherwise) by such Stockholder, if any, after the date hereof.
SECTION 1.6. Disclosure. The Stockholder hereby authorizes the Company to
publish and disclose in the Proxy Statement (including all documents and
schedules filed with the SEC), its identity and ownership of the Shares and the
nature of its commitments, arrangements and understandings under this Agreement.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to the Company as follows:
SECTION 2.1. Due Authorization, etc. The Stockholder has all requisite
power and authority to execute, deliver and perform this Agreement, to appoint
the Company as its Proxy and to consummate the transactions contemplated hereby.
The execution, delivery and performance of this Agreement, the appointment of
the Company as Stockholder's Proxy and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of Stockholder. This Agreement has been duly executed and delivered by or
on behalf of the Stockholder and constitutes a legal, valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws and except that the availability of equitable
remedies, including specific performance, is subject to the discretion of the
court before which any proceeding for such remedy may be brought.
SECTION 2.2. Required Filings and Consents. The execution and delivery of
this Agreement by the Stockholder does not, and the performance of this
Agreement by the Stockholder will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority (other than any necessary filing under the Exchange
Act), domestic or foreign, except where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent
or delay the performance by the Stockholder of the Stockholder's obligations
under this Agreement.
SECTION 2.3. Ownership of Shares. The Stockholder is the record and
beneficial owner of the Shares set forth opposite its name on Schedule I hereto.
On the date hereof, such Shares constitute all of the Shares owned of record or
beneficially by such Stockholder.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY
The Company hereby represents and warrants to the Stockholder as follows:
SECTION 3.1. Due Organization, Authorization, etc. The Company is duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Company has all requisite corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by the Company have been duly authorized by all
necessary corporate action on the part of the Company. This Agreement has been
duly executed and delivered by the Company and constitutes a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws and except that the availability of equitable
remedies, including specific performance, is subject to the discretion of the
court before which any proceeding for such remedy may be brought.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1. Definitions. Terms used but not otherwise defined in this
Agreement have the meanings ascribed to such terms in the Purchase Agreement.
SECTION 4.2. Termination. This Agreement shall terminate and be of no
further force and effect (i) by the written mutual consent of the parties
hereto, (ii) automatically and without any required action of the parties hereto
upon the Second Closing, (iii) automatically and without any required action of
the parties hereto upon the Exchange Termination Date (unless the failure of the
Second Closing to occur prior to the Exchange Termination Date results from a
breach of Section 1.1, 1.2, 1.3 or 1.4 of this Agreement by the Stockholder or
any transferee of the Shares, in which case termination of this Agreement
pursuant to this clause (iii) will not be permitted until such time as the
breach has been either (x) waived by the Company or (y) cured and the
Exchangeable Notes have been exchanged for the Second Closing Shares) or (iv)
automatically and without any required action of the parties hereto upon
termination of the Purchase Agreement in accordance with its terms. No such
termination of this Agreement shall relieve any party hereto from any liability
for any breach of this Agreement prior to termination.
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SECTION 4.3. Further Assurance. From time to time, at another party's
request and without consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
SECTION 4.4. No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, or any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
SECTION 4.5. Specific Performance. The Stockholder acknowledges that if the
Stockholder fails to perform any of its obligations under this Agreement,
immediate and irreparable harm or injury would be caused to the Company for
which money damages would not be an adequate remedy. In such event, the
Stockholder agrees that the Company shall have the right, in addition to any
other rights it may have, to specific performance of this Agreement.
Accordingly, should the Company institute an action or proceeding seeking
specific enforcement of the provisions hereof, the Stockholder hereby waives the
claim or defense that the Company has an adequate remedy at law and hereby
agrees not to assert in any such action or proceeding the claim or defense that
such a remedy at law exists.
SECTION 4.6. Notice. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made (i) as of the date delivered or sent by facsimile if delivered
personally or by facsimile, and (ii) on the third business day after deposit in
the U.S. mail, if mailed by registered or certified mail (postage prepaid,
return receipt requested), in each case to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice, except that notices of changes of address shall be effective upon
receipt):
(a) If to the Company:
2 Goodyear
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇; and
(b) If to the Stockholder, at the address set forth below the Stockholder's
name on Schedule I hereto.
SECTION 4.7. Expenses. All fees, costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the Company, including, without limitation, the fees, costs and expenses
incurred by the Stockholder.
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SECTION 4.8. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 4.9. Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the maximum extent possible.
SECTION 4.10. Entire Agreement; No Third-Party Beneficiaries. This
Agreement constitutes the entire agreement and supersedes any and all other
prior agreements and undertakings, both written and oral, among the parties, or
any of them, with respect to the subject matter hereof, and this Agreement is
not intended to confer upon any other person any rights or remedies hereunder.
SECTION 4.11. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise.
SECTION 4.12. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed entirely within that State.
SECTION 4.13. Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of the Company and the Stockholder.
SECTION 4.14. Waiver. Any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties of the other
parties hereto contained herein or in any document delivered pursuant hereto and
(c) waive compliance by the other parties hereto with any of their agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party. The failure of any
party hereto to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
SECTION 4.15. Descriptive Headings; Interpretation. The descriptive
headings herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement.
SECTION 4.16. Counterparts. This Agreement may be executed (including by
facsimile transmission) in one or more counterparts, and by the different
parties hereto in
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separate counterparts, each of which when executed shall be deemed to be an
original but all of which shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Company and the Stockholder have caused this
Agreement to be executed as of the date first written above.
MICRO THERAPEUTICS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, III
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇, III
Title: President
MICRO INVESTMENT, LLC
By: ev3 LLC, its Sole Member
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
Schedule I
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Number of Shares
Name and Address of Stockholder Beneficially Owned
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Micro Investment, LLC 24,336,759
c/o ev3 LLC
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
