Exhibit 2
CORPORATE OPPORTUNITY AGREEMENT
This Corporate Opportunity Agreement, dated as of April 4, 2005 (the
"Agreement"), is entered into by and among the institutional stockholders listed
on Schedule I hereto (each, a "Stockholder" and collectively, the
"Stockholders") and ev3 Inc., a Delaware corporation (the "Company").
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in Section 6.1 of this Agreement.
R E C I T A L S
WHEREAS, the Company intends to file a Registration Statement on Form S-1
(the "Registration Statement") with the Securities and Exchange Commission
("SEC") pursuant to which it will pursue the Initial Public Offering of its
common stock, par value $0.01 per share ("Company Common Stock");
WHEREAS, on the date hereof the Stockholders are the owners of 9,704,819
shares (collectively, the "MTI Shares") of common stock, par value $0.001 per
share, of Micro Therapeutics, Inc., a Delaware corporation ("MTI"), representing
all of the MTI Shares owned directly by the Stockholders (but excluding any
shares of MTI common stock the Stockholders may be deemed to beneficially own by
virtue of their respective ownership of ev3 LLC, a Delaware limited liability
company);
WHEREAS, the Stockholders are party to that certain Contribution and
Exchange Agreement, dated as of the date hereof (the "Contribution and Exchange
Agreement"), pursuant to which the Stockholders have agreed to contribute to ev3
LLC, on the terms and subject to the conditions set forth therein, the MTI
Shares owned by them (the "Contribution") in exchange for the issuance to the
Stockholders of the number of common membership units of ev3 LLC determined in
the manner set forth in the Contribution and Exchange Agreement;
WHEREAS, each of the Company and MTI have relied on financing from the
Stockholders in the past in order to operate their respective businesses;
WHEREAS, certain of the Stockholders are party to that certain letter
agreement, dated as of March 28, 2005, with MTI pursuant to which certain of the
Stockholders have agreed to provide up to $5 million of financing to MTI (the
"Support Letter") on the terms and subject to all of the conditions set forth in
the Support Letter; and
WHEREAS, pursuant to this Agreement, the parties hereto desire to set forth
certain understandings with respect to the financings of MTI that may be made
pursuant to the Support Letter or otherwise.
NOW, THEREFORE, in consideration of the premises and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE I.
NEGOTIATION RIGHT; RIGHT OF FIRST REFUSAL
Section 1.1. Negotiation Right.
(a) Financing Request; Company Option Period. Subject to the terms and
provisions contained herein, including, without limitation, Section 1.2 below,
in the event a Stockholder receives a request from MTI pursuant to which MTI
requests the Stockholder to provide financing to MTI (a "Financing Request"),
such Stockholder will promptly forward the financing request to the Company. The
Company shall have thirty (30) calendar days following the date on which the
Company is first informed by the Stockholders of the Financing Request (as such
period may be extended pursuant to Section 1.1(b), the "Company Option Period")
to negotiate in good faith with MTI the terms pursuant to which the Company will
provide the financing requested by MTI in the Financing Request (such right, the
"Negotiation Right"). In the event that either (i) the Company elects to
exercise its Negotiation Right and subsequently determines, for any reason
whatsoever, to discontinue negotiations with MTI, (ii) MTI advises the Company
that, based on a determination of a majority of the independent directors of
MTI, it will not consider a financing from the Company or (iii) the Company
advises the Stockholders that it does not wish to pursue the Negotiation Right,
the Company shall promptly notify each of the Stockholders and the Company's
Negotiation Right with respect to the Financing Request then being made by MTI
shall terminate. The foregoing, however, shall not terminate the Company's
Negotiation Rights under this Agreement with respect to future subsequent
Financing Requests and any such future Financing Requests shall be subject to
the terms and conditions of this Agreement, including, without limitation, this
Section 1.1.
(b) Extension of Company Option Period; Termination of Company Option
Period. If the Company is proceeding in good faith with negotiations with MTI
relating to the Financing Request, the Company may extend the Company Option
Period for an additional thirty (30) calendar days by notifying the
Stockholders. Upon expiration of the Company Option Period, as such period may
be extended pursuant to this Section 1.1(b), in the event MTI and the Company
have not executed definitive documentation relating to the Financing Request,
each of the Stockholders shall, subject to Section 1.3 hereof, have the right to
pursue a financing of MTI and any such financing shall not be subject to this
Section 1.1. Additionally, in the event that the Company does not exercise its
Negotiation Right or such Negotiation Right terminates, each of the Stockholders
shall, subject to Section 1.3 hereof, have the right to pursue a financing of
MTI and any such financing shall not be subject to this Section 1.1.
Section 1.2. No Violation of Obligations Pursuant to Support Letter; Bridge
Financings. This Agreement shall in no way whatsoever result in the violation
of, or require any Stockholder to violate, the terms of the Support Letter.
Therefore, upon receipt of a Financing Request, the Stockholders shall, whether
before, during or after the Company Option Period, be permitted to provide
short-term bridge financing to MTI on terms mutually acceptable to the
Stockholders and MTI, which bridge financing shall permit MTI to repay such
financing (without penalty) with the proceeds from a financing of MTI by the
Company.
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Section 1.3. Right of First Refusal.
(a) Grant of Right of First Refusal. Before any of the Stockholders
make any financial investment in MTI, the Stockholders shall notify the
Company and provide the Company with a summary of the material terms (the
"Proposed Terms") pursuant to which the Stockholders are prepared to invest
in MTI. The Company shall have the right, but not the obligation, to pursue
an investment in MTI (in lieu of the Stockholders) on the same Proposed
Terms on which the Stockholders were prepared to invest in MTI.
(b) Notification; Termination of Right of First Refusal. Within five
(5) Business Days following the receipt of the Proposed Terms from the
Stockholders, the Company shall give written notice to each of the
Stockholders of its intention to pursue an investment in MTI, or that it
does not intend to pursue an investment in MTI. Failure by the Company to
give written notice of its intention within such five (5) Business Day
period shall be deemed an election by the Company not to pursue an
investment in MTI and the Stockholders shall have thirty (30) calendar days
to pursue execution of definitive documentation relating to a financing of
MTI on the same Proposed Terms that were provided to the Company by the
Stockholders (or on terms that are not more favorable in the aggregate to
the Stockholders). The Company's rights with respect to a financing
contemplated by the Proposed Terms and this Section 1.3 shall automatically
terminate in the event the Company and MTI do not execute definitive
documentation relating to an investment in MTI by the Company within thirty
(30) calendar days following receipt of the Proposed Terms from the
Stockholders; provided, however, if, upon expiration of such thirty (30)
day period, the Company reasonably believes negotiation of the terms of a
potential financing of MTI by the Company is proceeding in good faith
between representatives of the Company and MTI, the Company may extend such
period for an additional thirty (30) calendar days by notifying the
Stockholders; provided further, however, the Company's rights with respect
to a financing contemplated by this Section 1.3 shall automatically
terminate in the event the Company and MTI do not execute definitive
documentation relating to an investment in MTI by the Company within such
extended thirty (30) day period and, thereafter, the Stockholders shall
have thirty (30) calendar days to pursue execution of definitive
documentation relating to a financing of MTI on the same Proposed Terms
that were provided to the Company by the Stockholders (or on terms that are
not more favorable in the aggregate to the Stockholders).
(c) Material Change in Proposed Terms. In the event Company does not
invest in MTI pursuant to the rights granted to it in this Section 1.3 and
thereafter there is a material change in the Proposed Terms negotiated by
the Stockholders and MTI, before any of the Stockholders execute definitive
documentation relating to an investment in MTI, the Stockholders shall
notify the Company and provide the Company with a summary of the modified
Proposed Terms and provide the Company with the opportunity to invest in
MTI (in lieu of the Stockholders) on the same modified Proposed Terms. With
respect to the modified Proposed Terms, the Company and the Stockholders
shall follow the procedures set forth in this Section 1.3, except that
references to "thirty (30)" calendar days above shall be deemed to be
references to "ten (10)" calendar days.
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(d) Reinstatement of Right of First Refusal; Stockholder Expenses. If
a financing of MTI is not consummated by either the Company or the
Stockholder pursuant to the conditions set forth above, the right of first
refusal granted to the Company pursuant to this Section 1.3 shall be
reinstated upon the same terms and conditions as aforesaid. If the Company
accepts the opportunity to invest in MTI in accordance with this Section
1.3, the Company will reimburse the Stockholders for their reasonable
out-of-pocket and third-party expenses incurred in connection with the
negotiation of the Proposed Terms with MTI, including any such expenses
incurred as a result of this Section 1.3.
Section 1.4. Approval by Disinterested Directors. Any decisions by the
Company pursuant to this Agreement, including any financing of MTI by the
Company, shall be approved by a majority of the Disinterested Directors of the
Company.
ARTICLE II.
CORPORATE OPPORTUNITY
Section 2.1. Corporate Opportunity. The Company acknowledges that the
Stockholders and their respective officers, directors, agents, members, partners
or Affiliates may engage or invest in, independently or with others, any
business activity or any type of transaction with MTI or its Affiliates,
including, without limitation, a financing transaction pursuant to the Support
Letter or otherwise in accordance with Article I (each such activity, a
"Corporate Opportunity"). The Company acknowledges that neither the Company nor
any stockholder of the Company, subsidiary of the Company or Affiliate of the
Company shall have any interest in, or expectation that, such Corporate
Opportunity be offered to it except as provided in Article I, and any such
interest or expectation otherwise due the Company or its stockholders,
subsidiaries or Affiliates with respect to such Corporate Opportunity is hereby
renounced by the Company. Accordingly, the Stockholders and their respective
officers, directors, agents, members, partners or Affiliates (i) except to the
extent required pursuant to Article I above, shall have no duty to communicate
or present such Corporate Opportunity to the Company or its stockholders,
subsidiaries or Affiliates, (ii) shall have the right to hold any such Corporate
Opportunity for its own account, or the account of another Person, or to
recommend, sell, assign or otherwise transfer such Corporate Opportunity to
Persons other than the Company or any subsidiary or Affiliate of the Company and
(iii) shall not be liable, whether for breach of fiduciary duty or otherwise, to
the Company, any of its stockholders, subsidiaries or Affiliates as a
stockholder of the Company, member of the Company's Board of Directors or
otherwise by reason of the fact that such person pursues or acquires such
Corporate Opportunity for itself, directs, sells, assigns or otherwise transfers
such Corporate Opportunity to another Person, or does not communicate
information regarding such Corporate Opportunity to the Company or its Board of
Directors, stockholders, subsidiaries or Affiliates except as required by
Article I. The Company acknowledges that this Section 2.1 renounces specified
business opportunities as contemplated by Section 122(17) of the Delaware
General Corporation Law ("DGCL").
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each of the Stockholders as follows:
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Section 3.1. Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Section 3.2. Authority. The Board of Directors of the Company, including
the Disinterested Directors, has unanimously authorized the execution, delivery
and performance of this Agreement and the transactions contemplated hereby. No
other corporate action is necessary to authorize such execution, delivery and
performance, and upon such execution and delivery, this Agreement shall
constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditor's rights generally or by general principles of equity.
Section 3.3. Section 122(17) of DGCL. Section 2.1 has been specifically
acknowledged and approved by the Board of Directors of the Company, including
the Disinterested Directors, pursuant to Section 122(17) of the DGCL.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders, severally and not jointly, represents and
warrants to the Company as follows:
Section 4.1. Authority. This Agreement has been duly and validly executed
and delivered by the Stockholder and is a legal, valid and binding obligation of
such Stockholder enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditor's rights generally or by general
principles of equity.
ARTICLE V.
TERMINATION
Section 5.1. Termination.
(a) Mutual Consent. This Agreement may be terminated with the mutual
written consent of the Company and each Stockholder.
(b) Outside Initial Public Offering Date. Unless otherwise agreed by the
Company and the Stockholders, this Agreement may be terminated by the Company or
the Stockholders in the event that the Initial Public Offering shall not have
occurred on or before September 30, 2005.
(c) Automatic Termination. Subject to Section 5.2, this Agreement shall
automatically terminate on the date on which the Stockholders collectively own
beneficially (within the meaning of Rule 13d-3 of the Securities Exchange Act of
1934, as amended) less than 10% of the Company Common Stock.
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Section 5.2. Effect of Termination. If this Agreement is terminated
pursuant to Section 5.1, the Company shall remain obligated to reimburse each
Stockholder for the expenses described in Section 6.5 of this Agreement.
Notwithstanding the termination of this Agreement pursuant to Section 5.1,
Articles II and VI and this Section 5.2 shall survive termination perpetually.
ARTICLE VI.
MISCELLANEOUS PROVISIONS
Section 6.1. Terms Defined. As used in this Agreement, the following terms
have the respective meaning set forth below:
(a) "Affiliate" shall mean any Person or entity, directly or
indirectly controlling, controlled by or under common control with such
Person or entity.
(b) "Business Day" shall mean any day other than a Saturday, a Sunday
or any day on which commercial banks are permitted or required to be closed
in New York City.
(c) "Disinterested Director" shall mean any member of the Board of
Directors of the Company who is not an employee of the Company or a
managing director, partner, member or otherwise affiliated with a
Stockholder.
(d) "Initial Public Offering" shall mean the underwritten initial
public offering pursuant to an effective Registration Statement under the
Securities Act covering the offer and sale of the Company Common Stock to
the public generally at a price to the public which places upon the Company
a value (calculated by multiplying the number of shares of common stock
outstanding on a fully diluted basis immediately prior to such offering by
the per share initial public offering price (before giving effect to the
underwriting discount), as set forth on the cover of the final prospectus
for such offering) of at least $150 million and in which the net proceeds
to the Company are not less than $40 million and as a result of which the
shares of Company Common Stock are designated for trading on the New York
Stock Exchange, the American Stock Exchange or the NASDAQ National Market.
(e) "Person" shall mean an individual, partnership, joint-stock
company, corporation, limited liability company, trust or unincorporated
organization, and a government or agency or political subdivision thereof.
(f) "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
Section 6.2. Notices. All communications under this Agreement shall be in
writing and shall be delivered by hand or facsimile or mailed by overnight
courier or by registered mail or certified mail, postage prepaid:
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(a) if to the Stockholders, at the address or facsimile number listed
on Schedule I hereto, or at such other address or facsimile number as may
have been furnished to the Company, the other Stockholders and MTI in
writing; and
(b) if to the Company, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), marked for attention of President, or at
such other address or facsimile as the Company may have furnished in
writing to each of the Stockholders and MTI.
Any notice so addressed shall be deemed to be given: if delivered by hand or
facsimile, on the date of such delivery, if a Business Day and delivered during
regular business hours, otherwise the first Business Day thereafter; if mailed
by courier, on the first Business Day following the date of such mailing; and if
mailed by registered or certified mail, on the third Business Day after the date
of such mailing.
Section 6.3. Amendments. The terms, provisions and conditions of this
Agreement may not be changed, modified, waived or amended in any manner except
by an instrument in writing duly executed by the Company and each of the
Stockholders.
Section 6.4. Assignment; Parties in Interest.
(a) Assignment. Neither this Agreement nor any of the rights, duties, or
obligations of any party hereunder may be assigned or delegated by any party
hereto except with the prior written consent of the Company and each of the
Stockholders.
(b) Parties in Interest. This Agreement shall not confer any rights or
remedies upon any Person other than the parties hereto and their respective
permitted successors and assigns.
Section 6.5. Confidentiality. The terms of any communications (whether
written or oral) among the parties hereto, including communications amongst each
party's respective directors, officers, agents, stockholders, members, advisors
or partners shall remain confidential. No party shall disclose the terms or
existence of any communications made pursuant to this Agreement to any Person
except (a) to the extent required by law, (b) to the extent necessary to enforce
its rights or obligations under this Agreement and (c) to its directors,
officers, agents, stockholders, members, advisors or partners to the extent
necessary so that such persons may perform their role as directors, officers,
agents, stockholders, members, advisors or partners; provided that such party
advises such persons of the confidentiality provisions contained in, and
confidential nature of, this Agreement and the communications made hereunder;
provided further, that such party will be responsible for any breach of this
paragraph by such persons. Notwithstanding the foregoing, each party hereto
acknowledges that each of the Stockholders and the Company may be obligated file
this Agreement with the SEC and each such party consents to the filing of this
Agreement with the SEC and the disclosure of the terms of such Agreement in any
filings required to be made with the SEC.
Section 6.6. Expenses. The Company agrees to pay the Stockholder's
out-of-pocket expenses, including the reasonable fees and disbursements of one
counsel to the
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Stockholders, incurred in connection with the negotiation, preparation,
execution and delivery of this Agreement and the other instruments and
agreements entered into pursuant to this Agreement or such other agreements, and
any amendments to the same.
Section 6.7. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof,
supersedes and is in full substitution for any and all prior agreements and
understandings among them relating to such subject matter, and no party shall be
liable or bound to the other party hereto in any manner with respect to such
subject matter by any warranties, representations, indemnities, covenants or
agreements except as specifically set forth herein. The Schedule to this
Agreement is incorporated herein and made a part hereof and is an integral part
of this Agreement.
Section 6.8. Descriptive Headings. The descriptive headings of the several
sections (including subsections) of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 6.9. Counterparts. For the convenience of the parties, any number
of counterparts of this Agreement may be executed by any one or more parties
hereto (including by facsimile), and each such executed counterpart shall be,
and shall be deemed to be, an original, but all of which shall constitute, and
shall be deemed to constitute, in the aggregate but one and the same instrument.
Section 6.10. Governing Law. This Agreement and the legal relations among
the parties hereto shall be governed by and construed in accordance with the
laws of the State of Delaware, applicable to contracts made and performed
therein.
Section 6.11. Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any party.
Section 6.12. Severability. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument. Furthermore, in lieu of any such
invalid, illegal or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar in
terms to such invalid, illegal or unenforceable provision as may be possible and
be valid, legal and enforceable.
Section 6.13. Specific Performance. Without limiting or waiving in any
respect any rights or remedies of any party under this Agreement now or
hereinafter existing at law or in equity or by statute, each of the parties
hereto shall be entitled to seek specific performance of the obligations to be
performed by the other in accordance with the provisions of this Agreement.
Section 6.14. Survival of Provisions. The respective representations,
warranties, covenants and agreements of each of the parties to this Agreement
shall survive the
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execution of this Agreement and the consummation of the transactions
contemplated by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
ev3 Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
WARBURG, ▇▇▇▇▇▇ EQUITY PARTNERS, L.P.
By: Warburg Pincus Partners LLC,
General Partner
By: Warburg Pincus & Co.,
Managing Member
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Partner
WARBURG, ▇▇▇▇▇▇ NETHERLANDS EQUITY
PARTNERS I, C.V.
By: Warburg Pincus Partners LLC,
General Partner
By: Warburg Pincus & Co.,
Managing Member
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Partner
WARBURG, ▇▇▇▇▇▇ NETHERLANDS EQUITY
PARTNERS II, C.V.
By: Warburg Pincus Partners LLC,
General Partner
By: Warburg Pincus & Co.,
Managing Member
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Partner
WARBURG, ▇▇▇▇▇▇ NETHERLANDS EQUITY
PARTNERS III, C.V.
By: Warburg Pincus Partners LLC,
General Partner
By: Warburg Pincus & Co.,
Managing Member
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Partner
VERTICAL FUND I, L.P.
By: Vertical Group, L.P.,
General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: General Partner
VERTICAL FUND II, L.P.
By: Vertical Group, L.P.,
General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: General Partner
