SC 13D/A

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, U0kWN+uVuhYvcDFI3uZM2ReQQ08kVqVVdIg9a8z6YRGOMlcqLCPx1z4ZEE18V+rW zUZ9yJkCQeravnWvreq7fw== 0000950123-07-010159.txt : 20070723 0000950123-07-010159.hdr.sgml : 20070723 20070723171647 ACCESSION NUMBER: 0000950123-07-010159 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20070723 DATE AS OF CHANGE: 20070723 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FOXHOLLOW TECHNOLOGIES, INC. CENTRAL INDEX KEY: 0001217688 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 943252085 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-80438 FILM NUMBER: 07994299 BUSINESS ADDRESS: STREET 1: 740 BAY ROAD CITY: REDWOOD CITY STATE: CA ZIP: 94063-2469 BUSINESS PHONE: 650-421-8400 MAIL ADDRESS: STREET 1: 740 BAY ROAD CITY: REDWOOD CITY STATE: CA ZIP: 94063-2469 FORMER COMPANY: FORMER CONFORMED NAME: FOX HOLLOW TECHNOLOGIES INC DATE OF NAME CHANGE: 20030206 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MERCK & CO INC CENTRAL INDEX KEY: 0000064978 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 221109110 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: ONE MERCK DR STREET 2: P O BOX 100 CITY: WHITEHOUSE STATION STATE: NJ ZIP: 08889-0100 BUSINESS PHONE: 9084231688 MAIL ADDRESS: STREET 1: ONE MERCK DR STREET 2: PO BOX 100 WS3AB-05 CITY: WHITEHOUSE STATION STATE: NJ ZIP: 08889-0100 SC 13D/A 1 y37262asc13dza.htm AMENDMENT NO. 1 TO SCHEDULE 13D SC 13D/A


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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Amendment No. 1 )

Under the Securities Exchange Act of 1934

FOXHOLLOW TECHNOLOGIES, INC.

(Name of Issuer)

Common Stock, par value $0.001 per share

(Title of Class of Securities)

35166A103

(CUSIP Number)

Celia Colbert
Vice President, Secretary, and
Assistant General Counsel
Merck & Co., Inc.
One Merck Drive
Whitehouse Station, NJ 08889-0100

(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)

July 21, 2007

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).


CUSIP No.		35166A103		Page		2		of		5


1	NAMES OF REPORTING PERSONS: Merck & Co., Inc.

	I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
	22-1109110

2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
	(a) o
	(b) o

3	SEC USE ONLY:



4	SOURCE OF FUNDS (SEE INSTRUCTIONS):

	OO, WC

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e):

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION:

	New Jersey

		7	SOLE VOTING POWER:

NUMBER OF			3,206,318

SHARES		8	SHARED VOTING POWER:
BENEFICIALLY
OWNED BY			0

EACH		9	SOLE DISPOSITIVE POWER:
REPORTING
PERSON			3,206,318

WITH		10	SHARED DISPOSITIVE POWER:

			0

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:

	3,206,318

12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):

	o

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):

	10.8%(1)

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):

	CO

(1) Based on 29,612,509 shares of common stock of FoxHollow Technologies, Inc. issued and outstanding on May 1, 2007, as reported in its Quarterly Report on Form 10-Q for the period ended March 31, 2007.

Page 3 of 5

This Amendment No. 1 to Schedule 13D hereby amends and supplements the statement of beneficial ownership on Schedule 13D initially filed by the Reporting Persons on November 20, 2006 (the “Initial Statement”), relating to the common stock, par value $0. 001 per share (the “FoxHollow Common Stock”), of FoxHollow Technologies, Inc., a Delaware corporation (“FoxHollow”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Initial Statement.

ITEM 4. PURPOSE OF TRANSACTION

The following information is hereby added to Item 4:

On July 21, 2007, FoxHollow entered into an Agreement and Plan of Merger (the “Merger Agreement”) with ev3 Inc., a Delaware corporation (“ev3”), and Foreigner Merger Sub, Inc., a Delaware corporation and direct wholly owned subsidiary of ev3 (“Merger Sub”). The Merger Agreement provides that, upon the terms and subject to the conditions set forth in the Merger Agreement, Merger Sub will merge with and into FoxHollow (the “Merger”), with FoxHollow continuing as the surviving company and a direct wholly owned subsidiary of ev3 following the transaction.

Concurrently and in connection with the execution of the Merger Agreement, Merck entered into a voting agreement with ev3 (the “Voting Agreement”), pursuant to which Merck agreed to vote its shares of FoxHollow common stock in favor of the Merger, the Merger Agreement and the transactions contemplated by the Merger Agreement and against certain transactions or certain actions that would delay, prevent or nullify the Merger or the transactions contemplated by the Merger Agreement. The Voting Agreements will terminate upon the earlier of the consummation of the Merger or the termination of the Merger Agreement.

A copy of the Voting Agreement is attached as Exhibit 7.03 hereto and the foregoing summary is qualified in its entirety by reference thereto.

Concurrently and in connection with the execution of the Merger Agreement, Merck, FoxHollow and ev3 entered into an Amendment, Waiver, Consent and Assumption Agreement (the “Amendment, Waiver, Consent and Assumption Agreement”). Pursuant to the Amendment, Waiver, Consent and Assumption Agreement, among other things:

(i) Merck agreed effective upon the closing of the Merger to waive any right to terminate the Amended and Restated Collaboration and License Agreement as a result of the Merger;

(ii) the parties agreed to exclude FoxHollow’s current Chief Executive Officer’s departure as a corporate officer from the events triggering Merck’s ability to terminate the Amended and Restated Collaboration and License Agreement, but retained such right in the event he is no longer on the board of directors, except in the event of death or disability;

(iii) ev3 agreed to cause FoxHollow to continue to perform under the Amended and Restated Collaboration and License Agreement and directly assumed the exclusivity obligations of the Amended and Restated Collaboration and License Agreement;

(iv) Merck agreed to terminate certain rights under the Stock Purchase Agreement including its board approval rights over certain corporate actions as well as its anti-dilution rights.;

Page 4 of 5

(v) ev3 agreed to assume certain obligations of FoxHollow under the Stock Purchase Agreement, including FoxHollow’s obligation to honor Merck’s right of first offer to purchase additional securities to maintain its pro rata ownership;

(vi) the parties agreed that upon completion of the Merger, Richard N. Kender will be appointed to ev3’s board of directors as a representative of Merck and will be considered one of FoxHollow’s four directors to be part of ev3’s board following the Merger; and

(vii) in exchange for receiving registered shares of ev3’s common stock in the Merger, Merck has also agreed to terminate the Registration Rights Agreement.

A copy of the Amendment, Waiver, Consent and Assumption Agreement is attached as Exhibit 7.04 hereto and the foregoing summary is qualified in its entirety by reference thereto.


ITEM 6.		CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER

The following information is hereby added to Item 6:

The information set forth in Items 3, 4 and 5 is incorporated herein by reference. Other than as described elsewhere in this Schedule 13D and as previously reported, the Reporting Person has no understandings, arrangements, relationships or contracts relating to FoxHollow Common Stock that are required to be described hereunder.


ITEM 7.		MATERIAL TO BE FILED AS EXHIBITS

Item 7 is hereby amended and supplemented by adding the following:


7.03		Voting Agreement, dated as of July 21, 2007, by and between ev3 Inc. and Merck & Co., Inc.


7.04		Amendment, Waiver, Consent and Assumption Agreement dated as of July 21, 2007 by and among Merck & Co., Inc., FoxHollow Technologies, Inc., and ev3 Inc.

Page 5 of 5

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: July 23, 2007


MERCK & CO., INC.
By:	/s/ Celia A. Colbert
	Name:	Celia A. Colbert
	Title:	Vice President, Secretary and Assistant General Counsel

EX-99.7.03 2 y37262aexv99w7w03.htm EX-99.7.03: VOTING AGREEMENT EX-99.7.03

Exhibit 7.03

Voting Agreement

This Voting Agreement (this “Agreement”), is made and entered into as of July 21, 2007, by and between ev3 Inc., a Delaware corporation (“Parent”), and the undersigned stockholder (“Stockholder”) of FoxHollow Technologies, Inc., a Delaware corporation (the “Company”).

Recitals

A. Concurrently with the execution of this Agreement, Parent, Foreigner Merger Sub, Inc., a Delaware corporation and a wholly owned first-tier subsidiary of Parent (“Merger Sub”), and the Company are entering into an Agreement and Plan of Merger (as may be amended from time to time, the “Merger Agreement”), pursuant to which Merger Sub will be merged with and into the Company (such Merger, as contemplated by the Merger Agreement, being referred to as the “Merger”). Capitalized terms used but not defined herein shall have the meanings given to them in Annex A hereto.

B. Stockholder is the record and beneficial owner of such number of outstanding shares of Company Common Stock as is indicated on the signature pages to this Agreement.

C. Parent desires Stockholder to agree, and Stockholder is willing to agree, subject to the terms and conditions hereof, to vote the Shares (as defined in Section 1.1 below), so as to facilitate consummation of the Merger.

In consideration of the foregoing and the representations, warranties, covenants and agreements set forth in this Agreement, the parties agree as follows:

1. Voting of Shares.

1.1 Shares. The term “Shares” shall mean all issued and outstanding shares of Company Common Stock owned of record and beneficially owned by Stockholder or over which Stockholder exercises sole voting power, in each case, as of the date of this Agreement. Stockholder agrees that any shares of capital stock of the Company that Stockholder purchases or with respect to which Stockholder otherwise acquires beneficial ownership or over which Stockholder exercises sole voting power after the date of this Agreement and prior to the termination of this Agreement pursuant to Section 4 below shall be subject to the terms and conditions of this Agreement to the same extent as if they constituted Shares as of the date hereof.

1.2 Agreement to Vote Shares. Stockholder hereby covenants and agrees that during the period commencing on the date hereof and continuing until this Agreement terminates pursuant to Section 4 hereof, at any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the stockholders of the Company, however called, and in any action by written consent of the stockholders of the Company, Stockholder shall appear at the meeting or otherwise cause any and all Shares to be counted as present thereat for purposes of establishing a quorum and vote (or cause to be voted) any and all Shares: (i) in favor of the Company Stockholder Proposal (to the extent it relates solely to the approval of the Merger and the Merger Agreement); and (ii) against any of the following (or any agreement to enter into,

effect, facilitate or support any of the following): (A) any Acquisition Proposal; (B) any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company; or (C) any amendment of the Company’s Certificate of Incorporation or Bylaws or any other proposal or transaction involving the Company, the purpose of which amendment or other proposal or transaction is to delay, prevent or nullify the Merger or the transaction contemplated by the Merger Agreement or change in any manner the voting rights of any capital stock of the Company (collectively, “Frustrating Transactions”). Stockholder further agrees not to enter into any written or oral agreement with any person or entity the effect of which would be inconsistent with or violative of any provision contained in this Section 1.2. Any vote by the Stockholder that is not in accordance with this Section 1.2 shall be considered null and void. Notwithstanding anything to the contrary contained herein, nothing in this Agreement shall be construed to limit or restrict any representative of Stockholder from acting in his or her capacity as a director of the Company or voting in Stockholder’s sole discretion on any matter other than those matters referred to in the first sentence of this Section 1.2.

1.3 Adjustments Upon Changes in Capitalization. In the event of any change in the number of issued and outstanding shares of Company Common Stock by reason of any stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), combination, reorganization, recapitalization or other like change, conversion or exchange of shares, or any other change in the corporate or capital structure of the Company, the term “Shares” shall be deemed to refer to and include the Shares as well as all such stock dividends and distributions and any shares into which or for which any or all of the Shares may be changed or exchanged.

2. Other Restrictions.

2.1 Transfers and Other Restrictions. Stockholder represents, covenants and agrees that, except as contemplated by this Agreement: (i) Stockholder shall not, directly or indirectly, during the period commencing on the date hereof and continuing until this Agreement terminates pursuant to Section 4 hereof, (A) offer for sale or agree to sell, transfer, tender, assign, pledge, hypothecate or otherwise dispose of or enter into any contract, option or other arrangement or understanding with respect to, or consent to, the offer for sale, sale, transfer, tender, pledge, hypothecation, encumbrance, assignment or other disposition of, or create any Lien of any nature whatsoever with respect to, any or all of the Shares or any interest therein or (B) take any action that could make any of its representations or warranties contained herein untrue or incorrect or could have the effect of preventing or disabling the Stockholder from performing any of its obligations hereunder; (ii) Stockholder shall not grant any proxy or power of attorney, or deposit any Shares into a voting trust or enter into a voting agreement or other arrangement, with respect to the voting of Shares (each a “Voting Proxy”); and (iii) Stockholder has not granted, entered into or otherwise created any Voting Proxy which is currently (or which will hereafter become) effective, and if any Voting Proxy has been created, such Voting Proxy is hereby revoked.

2.2 No Press Releases. The Stockholder shall not, nor shall the Stockholder authorize or permit any investment banker, attorney or other adviser or representative of the Stockholder to, issue any press release or make any other public statement with respect to this

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Agreement, the Merger Agreement, the Merger or any related transactions without the prior written consent of Parent, except as may be required by Applicable Law.

2.3 No Appraisal Rights. The Stockholder hereby waives, and agrees not to exercise or assent to, any appraisal rights under Section 262 in connection with the Merger.

3. Representations and Warranties of Stockholder. Stockholder represents and warrants to Parent that:

3.1 Authority; Validity. Stockholder has all requisite capacity, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Stockholder and the consummation by Stockholder of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of Stockholder. This Agreement has been duly executed and delivered by Stockholder and, assuming the due authorization, execution and delivery of this Agreement by Parent, this Agreement constitutes the legal, valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights and remedies of creditors generally and to the effect of general principles of equity. No consent, approval, order, authorization or permit of, or registration, declaration or filing with, or notification to, any Governmental Entity is required to be obtained or made by or with respect to the Stockholder in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, other than (i) compliance with and filings under the HSR Act, if applicable to the Stockholder’s receipt in the Merger of Parent Common Stock, and (ii) such reports under Sections 13(d) and 16 of the Exchange Act as may be required in connection with this Agreement and the transactions contemplated hereby. If this Agreement is being executed in a representative or fiduciary capacity with respect to Stockholder, the person signing this Agreement has full power and authority to enter into and perform this Agreement.

3.2 Non-Contravention. The execution, delivery and performance of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not, contravene, conflict with, or result in any violation of, breach of or default by (with or without notice or lapse of time, or both) Stockholder under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or result in the creation of any Lien (other than pursuant to this Agreement) upon any of the properties or assets of Stockholder under, any provision of (i) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license applicable to Stockholder or (ii) any judgment, order, decree, statute, law, ordinance, injunction, rule or regulation applicable to Stockholder or any of Stockholder’s properties or assets, other than any such conflicts, violations, defaults, rights, or Liens that, individually or in the aggregate, would not impair the ability of Stockholder to perform Stockholder’s obligations hereunder or prevent, limit or restrict in any respect the consummation of any of the transactions contemplated hereby. There is no beneficiary or holder of a voting trust certificate or other interest of any trust of which Stockholder is settlor or trustee or any other person or entity, including any Governmental Entity, whose consent, approval, order or authorization is required by or with respect to Stockholder for the execution, delivery and performance of this Agreement by Stockholder or the consummation by Stockholder of the transactions contemplated hereby.

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3.3 Title. As of the date hereof, Stockholder is the record and beneficial owner of and has good and marketable title to the shares of Company Common Stock indicated on the signature pages hereto, free and clear of any Liens.

3.4 Power. Stockholder has sole voting power and sole power to issue instructions with respect to the matters set forth in Section 1 and Section 2 hereof and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Shares, with no limitations, qualifications or restrictions on such rights.

4. Effectiveness; Termination; No Survival. This Agreement shall become effective upon its execution by Stockholder and Parent. This Agreement may be terminated at any time by mutual written consent of Stockholder and Parent. This Agreement, and the obligations of Stockholder hereunder, including, without limitation, Stockholder’s obligations under Section 1 and Section 2 above, shall terminate, without any action by the parties hereto, upon the earlier to occur of the following: (i) the Effective Time; (ii) such date and time as the Merger Agreement shall have been validly terminated pursuant to Article VII thereof; and (iii) the entry by the Company into any amendment or modification to the Merger Agreement that materially and adversely affects Stockholder that has not been previously approved in writing by Stockholder, provided that, Section 6 shall survive a termination of this Agreement under clause (i) above. Nothing in this Section 4 shall relieve any party of liability for breach of this Agreement.

5. Further Assurances Subject to the terms of this Agreement, from time to time, Stockholder shall execute and deliver such additional documents and use commercially reasonable efforts to take, or cause to be taken, all such further actions, and to do or cause to be done, all things reasonably necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement.

6. Miscellaneous.

6.1 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, void or unenforceable, 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 extent possible.

6.2 Binding Effect and Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, but, except as otherwise specifically provided herein, neither this Agreement nor any of the rights, interests or obligations of the parties hereto may be assigned by either of the parties without the prior written consent of the other. Any purported assignment in violation of this Section 6.2 shall be void.

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6.3 Amendments and Modification. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by the parties hereto.

6.4 Specific Performance; Injunctive Relief; Attorneys Fees. The parties hereto acknowledge that Parent will be irreparably harmed and that there will be no adequate remedy at law for a violation of any of the covenants or agreements of Stockholder set forth herein. Therefore, it is agreed that, in addition to any other remedies that may be available to Parent upon any such violation, Parent shall have the right to enforce such covenants and agreements by specific performance, injunctive relief or by any other means available to Parent at law or in equity and Stockholder hereby irrevocably and unconditionally waives any objection to Parent seeking so to enforce such covenants and agreements by specific performance, injunctive relief and other means. If any action, suit or other proceeding (whether at law, in equity or otherwise) is instituted concerning or arising out of this Agreement or any transaction contemplated hereunder, the prevailing party shall recover, in addition to any other remedy granted to such party therein, all such party’s costs and attorneys fees incurred in connection with the prosecution or defense of such action, suit or other proceeding.

6.5 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given upon delivery either personally or by commercial delivery service, or sent via facsimile (receipt confirmed) to the parties at the following addresses or facsimile numbers (or at such other address or facsimile numbers for a party as shall be specified by like notice):

if to Parent, to:

ev3 Inc.

9600 54^th Avenue North, Suite 100

Plymouth, MN 55442-21111

Facsimile: (763) 398-7200

Attention: Kevin M. Klemz, Vice President, Secretary and Chief Legal Officer

with copies to:

Oppenheimer Wolff & Donnelly LLP

Plaza VII, Suite 3300

45 South Seventh Street

Minneapolis, MN 55402

Facsimile: (612) 607-7100

Attention: Bruce A. Machmeier, Esq.

if to Stockholder, at its address set forth on the signature pages hereto, with a copy (which shall not constitute notice) to each of:

FoxHollow Technologies, Inc.

740 Bay Road

Redwood City, CA 94063-2469

Facsimile: (650) 839-7920

Attention: John Simpson, M.D.

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and

Wilson Sonsini Goodrich & Rosati

Professional Corporation

650 Page Mill Road

Palo Alto, California 94304

Facsimile: (650) 493-6811

Attention: Martin W. Korman, Esq.

Robert T. Ishii, Esq.

Philip Oettinger, Esq.

6.6 Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the United States of America located in the State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement (and the parties agree not to commence any action, suit or proceeding relating thereto except in such courts), and further agree that service of any process, summons, notice or document by U.S. certified mail shall be effective service of process for any action, suit or proceeding brought against the parties in any such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement in the courts of the United States of America located in the State of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

6.7 Entire Agreement; No Third Party Beneficiaries. This Agreement and the Waiver, Consent and Assumption Agreement constitutes and contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior negotiations, correspondence, agreements, understandings, duties or obligations between the parties respecting the subject matter hereof and is not intended to convey upon any Person other than the parties hereto any rights or remedies hereunder.

6.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

6.9 Captions. The captions to sections of this Agreement have been inserted only for identification and reference purposes and shall not be used to construe or interpret this Agreement.

6.10 Stockholder Capacity. Stockholder has executed this Agreement solely in its capacity as the record and/or beneficial holder of Shares.

[signature page follows]

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In Witness Whereof, the parties hereto have caused this Voting Agreement to be executed as of the date first above written.

EV3 Inc.

By:
Name: Kevin M. Klemz
Title: Vice President, Secretary and Chief Legal Officer

Stockholder:

MERCK & CO., INC.

By:
Name:
Title:

Stockholder’s Address for Notice:

One Merck Drive
P.O. Box 100, WS3A-65
Whitehouse Station, NJ 08889-0100
Attention: Office of Secretary
Facsimile No.: (908) 735-1246

Outstanding Shares of Company Common Stock Beneficially Owned by Stockholder:

3,206,318

Options, Warrants or Rights to purchase Company Common Stock Beneficially Owned by Stockholder:

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EX-99.7.04 3 y37262aexv99w7w04.htm EX-99.7.04: AMENDMENT, WAIVER, CONSENT AND ASSUMPTION AGREEMENT EX-99.7.04

EXHIBIT 7.04

AMENDMENT, WAIVER, CONSENT AND ASSUMPTION AGREEMENT

This AMENDMENT, WAIVER, CONSENT AND ASSUMPTION AGREEMENT, dated as of July 21, 2007 (this “Agreement”), is by and among Merck & Co., Inc., a New Jersey corporation (“Merck”), FoxHollow Technologies, Inc., a Delaware corporation (“FoxHollow”), and ev3 Inc., a Delaware corporation (“ev3”).

A. Merck and FoxHollow are parties to that certain Amended and Restated Collaboration and License Agreement dated as of September 26, 2006, pursuant to which Merck and FoxHollow have agreed to perform certain collaboration activities related to the removal of atherosclerotic plaque from patient arteries (the “Collaboration Agreement”), and that certain Stock Purchase Agreement dated September 26, 2006 (the “Stock Purchase Agreement”), and that certain Registration Rights Agreement dated September 26, 2006 (the “Registration Rights Agreement,” together with the Collaboration Agreement and the Stock Purchase Agreement, the “Merck Agreements”), relating to Merck’s ownership of FoxHollow common stock.

B. ev3, Foreigner Merger Sub, Inc., a wholly owned subsidiary of ev3, and FoxHollow have entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which ev3’s wholly owned subsidiary will merge with and into FoxHollow and FoxHollow will become a wholly owned subsidiary of ev3 (the “Merger”). Capitalized terms used but not defined herein have the meanings given to them in Annex A hereto.

C. ev3 desires Merck to agree, and subject to the terms and conditions of this Agreement Merck is willing to agree, to (i) waive certain of its rights to terminate the Collaboration Agreement, (ii) consent to the Merger Agreement and the Merger, and (iii) enter into certain amendments to the Merck Agreements.

D. Merck desires that ev3 agree to cause FoxHollow to continue to perform its obligations under the Collaboration Agreement and agree to assume certain of FoxHollow’s obligations under the Collaboration Agreement and the Stock Purchase Agreement, which ev3 is willing to agree to subject to the terms and conditions of this Agreement.

Accordingly, and in consideration of the foregoing and for due and valuable consideration, the receipt of which is hereby acknowledged, and intending to be legally bound, the parties hereto do hereby agree as follows:

1. Waiver. Merck hereby expressly, irrevocably and unconditionally waives any and all rights that Merck may have to terminate the Collaboration Agreement as a result of the Merger, including any rights to terminate the Collaboration Agreement as a result of the Merger pursuant to Sections 8.2.1(c)(iii) and 8.2.3 of the Collaboration Agreement, or pursuant to Section 5.6(c) of the Stock Purchase Agreement.

2. Consent. Subject to the terms and conditions of this Agreement, Merck hereby (a) acknowledges receipt of notice of the Merger and waives any notice periods that may be required under the Merck Agreements in respect of the Merger Agreement and the Merger, including the notice requirements of Section 8.2.3 in the Collaboration Agreement; (b) consents, even though such consent may not be required, to any “assignment” of the Merck Agreements, including the

Collaboration Agreement and any license granted thereunder, as a result of the Change of Control caused by the Merger; and (c) acknowledges and agrees that the surviving corporation in the Merger will continue to enjoy the same rights and will remain subject to the same obligations that FoxHollow enjoyed immediately prior to the Merger, except as amended, modified or waived as set forth in this Agreement.

3. Merck Director. ev3 and FoxHollow agree that as of the Effective Date (as defined in Section 11 below) an individual designated by Merck (the “Investor Director”), who shall initially be Richard N. Kender will be appointed to ev3’s board of directors with a term ending in 2009, as one of FoxHollow’s four (4) directors to be part of the ev3 board following the Merger pursuant to Section 5.12(a) of the Merger Agreement. Merck shall have the right to designate a representative to replace Richard N. Kender, provided that the individual designated to replace Mr. Kender shall be reasonably acceptable to a majority of the independent members of ev3’s board of directors in their sole reasonable discretion. The Investor Director will be accorded no less favorable treatment than any other member of the ev3 board of directors, including without limitation, expense reimbursement and indemnification, membership on committees (it being agreed that for such purposes, the Investor Director shall be given the same consideration regarding membership as all other members of the ev3 board of directors), except that the Investor Director may be excluded from participation or deliberation by the Company’s Board of Director or committees thereof in connection with issues involving: (i) interpretations of the Collaboration Agreement or any other agreements between ev3 and Merck (as reasonably determined by ev3’s board of directors or relevant committee thereof), (ii) matters of conflict or dispute between ev3 and Merck, or (iii) any other matter between ev3 and a third party which is confidential and in the reasonable determination of ev3’s board of directors, would be compromised by the presence of the Investor Director due to such Investor Director’s affiliation with Merck. Merck agrees that such appointment of the Investor Director to the ev3 board in accordance with this Section 3 will satisfy all of the obligations of FoxHollow and/or ev3 pursuant to Section 5.1(a) of the Stock Purchase Agreement.

4. Collaboration Agreement Amendment and Guaranty. The parties hereto agree that effective on and after the Effective Date: (a) Section 8.2.1(c) of the Collaboration Agreement shall be amended by amending subsection (ii) to read as follows: “If at any time prior to November 9, 2009, Dr. John Simpson ceases to be a director of ev3 for any reason other than his death, or disability.”; (b) ev3 will guarantee to Merck that ev3 will procure the due and punctual performance and observance by FoxHollow of its obligations under or in accordance with the Collaboration Agreement, as amended pursuant to this section; and (c) ev3 hereby assumes, and is bound by, the obligations of FoxHollow pursuant to Section 2.9 of the Collaboration Agreement, even though FoxHollow is not a “Down-Stream Affiliate (as such term is defined in the Collaboration Agreement). If Merck and FoxHollow agree to amend, modify or alter FoxHollow’s obligations under the Collaboration Agreement after the Effective Date then, upon ev3’s consent to such amendment, modification or alteration, ev3 will continue to guaranty the due and punctual performance by FoxHollow of the Collaboration Agreement as so revised.

5. Stock Purchase Agreement Amendment and Assumption. The parties hereto agree that effective on and after the Effective Date: (a) the Stock Purchase Agreement will be amended by deleting Sections 5.2, 5.4, 5.9 and 5.10 in their entirety and amending the first clause of subsection (b) of Section 5.6 to read as follows: “If at any time prior to ev3’s annual meeting in 2010 Dr. John Simpson ceases to be a director of ev3 for any reason other than his death, or

disability, then:”; and (b) subject to the foregoing amendment, ev3 will assume the obligations of FoxHollow pursuant to Article V of the Stock Purchase Agreement, and Merck consents to ev3’s assumption of such obligations.

6. Registration Rights Agreement. Pursuant to and in accordance with the Merger Agreement, in exchange for Merck’s FoxHollow common stock Merck will receive shares of ev3 common stock registered pursuant to a Registration Statement on Form S-4 (the “Registered Shares”). Merck agrees that upon the issuance by ev3 of such Registered Shares all of the Registrable Securities (as defined in the Registration Rights Agreement) will cease to be Registrable Securities and the Registration Rights Agreement will terminate and be of no further force or effect.

7. No Terminations. Merck represents and warrants that as of the date hereof: (a) the Merck Agreements are in full force and effect; and (b) there are no current plans to terminate the Merck Agreements.

8. Merger Agreement. Each of ev3 and FoxHollow agrees that it shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under the Merger Agreement and Applicable Laws (as defined in the Merger Agreement) to consummate the Merger and the other transactions contemplated by the Merger Agreement on or before November 9, 2007.

9. Dispute Resolution. The parties agree that any dispute arising out of or relating to this Agreement or the formation, breach, termination or validity thereof will be resolved pursuant to the dispute resolutions procedures set forth in Section 9.7 of the Collaboration Agreement.

10. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without reference to its conflict of laws principals.

11. Notice. All notices which are required or permitted hereunder will be in writing and sufficient if delivered personally, sent by facsimile (and promptly confirmed by personal delivery, registered or certified mail or overnight courier), sent by nationally-recognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:

If to ev3 (or to FoxHollow
after the Effective Date):

ev3 Inc.

9600 54th Avenue North, Suite 100

Plymouth, MN 55442-2111

Attention: Kevin M. Klemz

Fax: (763) 398-7200

With a copy to:

Oppenheimer Wolff & Donnelly LLP

Plaza VII, Suite 3300

45 South Seventh Street

Minneapolis, MN 55402-1609

Attention: Bruce A. Machmeier, Esq.

Fax: (612) 607-7100

If to FoxHollow prior to
the Effective Date:

FoxHollow Technologies, Inc.

740 Bay Road

Rewood City, CA 94063-2469

Attention: John Simpson

Fax: (650) 839-7920

With a copy to:


Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
Facsimile: (650) 493-6811
Attention:		Martin W. Korman, Esq.
		Robert T. Ishii, Esq.
		Philip Oettinger, Esq.

If to Merck:

Merck & Co., Inc.

One Merck Drive

P.O. Box 100, WS3A-65

Whitehouse Station, NJ 08889-0100

Attention: Office of Secretary

Facsimile No.: (908) 735-1246

With a copy to:

Merck & Co., Inc.

One Merck Drive

Attention: Chief Licensing Officer

P.O. Box 100, WS2A-30

Whitehouse Station, NJ 08889-0100

Facsimile No.: (908) 735-1214

or to such other address(es) as the party to whom notice is to be given may have furnished to the other party in writing in accordance herewith. Any such notice will be deemed to have been given: (a) when delivered if personally delivered or sent by facsimile on a business day (or if delivered or sent on a non-business day, then on the next business day); (b) on the business day after dispatch if sent by nationally-recognized overnight courier; or (c) on the fifth (5^th) business day following the date of mailing, if sent by mail.

12. Effective Date. Other than paragraph 8 hereof which shall be effective as of the date hereto, this Agreement will be effective as of the effective time of the Merger (such date on which the effective time of the Merger occurs, the “Effective Date” of this Agreement). This Agreement will be of no force and effect and will be null and void if ev3 and FoxHollow do not consummate the transactions contemplated by the Merger Agreement.

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IN WITNESS WHEREOF, the parties have duly executed this Agreement effective as of the Effective Date.


MERCK & CO, INC.	EV3 INC.

By:	By:
Name:	Name:	Kevin M. Klemz
Its:	Its:	Vice President, Secretary and Chief Legal Officer

	FOXHOLLOW TECHNOLOGIES, INC.

	By:
	Name:	John B. Simpson, M.D.
	Its:	Chief Executive Officer

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