0000899140-05-000358.txt : 20120615 0000899140-05-000358.hdr.sgml : 20120615 20050406160638 ACCESSION NUMBER: 0000899140-05-000358 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20050406 DATE AS OF CHANGE: 20050406 GROUP MEMBERS: EV3 LLC GROUP MEMBERS: WARBURG PINCUS LLC GROUP MEMBERS: WARBURG PINCUS PARTNERS LLC GROUP MEMBERS: WARBURG, PINCUS & CO. GROUP MEMBERS: WARBURG, PINCUS EQUITY PARTNERS, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MICRO THERAPEUTICS INC CENTRAL INDEX KEY: 0000311407 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 330569235 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-51975 FILM NUMBER: 05737069 BUSINESS ADDRESS: STREET 1: 2 GOODYEAR CITY: IRVINE STATE: CA ZIP: 92618 BUSINESS PHONE: 9498373700 MAIL ADDRESS: STREET 1: 2 GOODYEAR CITY: IRVINE STATE: CA ZIP: 92618 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MICRO INVESTMENT LLC CENTRAL INDEX KEY: 0001141701 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O WARBURG PINCUS EQUITY PARTNERS LP STREET 2: 466 LEXINGTON AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2128780600 MAIL ADDRESS: STREET 1: C/O WARBURG PINCUS EQUITY PARTNERS LP STREET 2: 466 LEXINGTON AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 SC 13D/A 1 m2788877.txt AMENDMENT NO. 11 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D/A (Amendment No. 11) Under the Securities Exchange Act of 1934* MICRO THERAPEUTICS, INC. ------------------------ (Name of Issuer) Common Stock, $0.001 Par Value ------------------------------ (Title of Class of Securities) 59500W100 --------- (CUSIP Number) Scott A. Arenare, Esq. Managing Director and General Counsel Warburg Pincus LLC 466 Lexington Avenue New York, New York 10017 (212) 878-0600 -------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) April 4, 2005 ------------- (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 ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. 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). SCHEDULE 13D/A ------------------- ------------------ CUSIP No. 59500W100 Page 2 of 13 pages ------------------- ------------------ ------------ ------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Micro Investment, LLC ------------ ------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] ------------ ------------------------------------------------------------------- 3 SEC USE ONLY ------------ ------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) N/A ------------ ------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] ------------ ------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware --------------------- ----- ---------------------------------------------------- 7 SOLE VOTING POWER -0- NUMBER OF ----- --------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED 24,336,759 BY ----- ---------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH -0- ----- ---------------------------------------------------- 10 SHARED DISPOSITIVE POWER 24,336,759 ------------- ------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 24,336,759 ------------- ------------------------------------------------------------------ 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] ------------- ------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 50.3% ------------- ------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) OO ------------- ------------------------------------------------------------------ SCHEDULE 13D/A ------------------- ------------------ CUSIP No. 59500W100 Page 3 of 13 pages ------------------- ------------------ ------------ ------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Warburg, Pincus Equity Partners, L.P. - I.R.S. #13-3986317 ------------ ------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] ------------ ------------------------------------------------------------------- 3 SEC USE ONLY ------------ ------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) N/A ------------ ------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] ------------ ------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware --------------------- ----- ---------------------------------------------------- 7 SOLE VOTING POWER -0- NUMBER OF ----- --------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED 34,041,578 BY ----- ---------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH -0- ----- ---------------------------------------------------- 10 SHARED DISPOSITIVE POWER 34,041,578 ------------- ------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 34,041,578 ------------- ------------------------------------------------------------------ 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] ------------- ------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 70.3% ------------- ------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) PN ------------- ------------------------------------------------------------------ SCHEDULE 13D/A ------------------- ------------------ CUSIP No. 59500W100 Page 4 of 13 pages ------------------- ------------------ ------------ ------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Warburg Pincus & Co. - I.R.S. #13-6358475 ------------ ------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] ------------ ------------------------------------------------------------------- 3 SEC USE ONLY ------------ ------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) N/A ------------ ------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] ------------ ------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York --------------------- ----- ---------------------------------------------------- 7 SOLE VOTING POWER -0- NUMBER OF ----- --------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED 34,041,578 BY ----- ---------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH -0- ----- ---------------------------------------------------- 10 SHARED DISPOSITIVE POWER 34,041,578 ------------- ------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 34,041,578 ------------- ------------------------------------------------------------------ 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] ------------- ------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 70.3% ------------- ------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) PN ------------- ------------------------------------------------------------------ SCHEDULE 13D/A ------------------- ------------------ CUSIP No. 59500W100 Page 5 of 13 pages ------------------- ------------------ ------------ ------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Warburg Pincus LLC - I.R.S. #13-3536050 ------------ ------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] ------------ ------------------------------------------------------------------- 3 SEC USE ONLY ------------ ------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) N/A ------------ ------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] ------------ ------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York --------------------- ----- ---------------------------------------------------- 7 SOLE VOTING POWER -0- NUMBER OF ----- --------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED 34,041,578 BY ----- ---------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH -0- ----- ---------------------------------------------------- 10 SHARED DISPOSITIVE POWER 34,041,578 ------------- ------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 34,041,578 ------------- ------------------------------------------------------------------ 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] ------------- ------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 70.3% ------------- ------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) OO ------------- ------------------------------------------------------------------ SCHEDULE 13D/A ------------------- ------------------ CUSIP No. 59500W100 Page 6 of 13 pages ------------------- ------------------ ------------ ------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Warburg Pincus Partners LLC - I.R.S. #13-4069737 ------------ ------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] ------------ ------------------------------------------------------------------- 3 SEC USE ONLY ------------ ------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) N/A ------------ ------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] ------------ ------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York --------------------- ----- ---------------------------------------------------- 7 SOLE VOTING POWER -0- NUMBER OF ----- --------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED 34,041,578 BY ----- ---------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH -0- ----- ---------------------------------------------------- 10 SHARED DISPOSITIVE POWER 34,041,578 ------------- ------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 34,041,578 ------------- ------------------------------------------------------------------ 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] ------------- ------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 70.3% ------------- ------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) OO ------------- ------------------------------------------------------------------ SCHEDULE 13D/A ------------------- ------------------ CUSIP No. 59500W100 Page 7 of 13 pages ------------------- ------------------ ------------ ------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) ev3 LLC ------------ ------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] ------------ ------------------------------------------------------------------- 3 SEC USE ONLY ------------ ------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) N/A ------------ ------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] ------------ ------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware --------------------- ----- ---------------------------------------------------- 7 SOLE VOTING POWER -0- NUMBER OF ----- --------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED 34,041,578 BY ----- ---------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH -0- ----- ---------------------------------------------------- 10 SHARED DISPOSITIVE POWER 34,041,578 ------------- ------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 34,041,578 ------------- ------------------------------------------------------------------ 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] ------------- ------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 70.3% ------------- ------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) OO ------------- ------------------------------------------------------------------ This Amendment No. 11 amends the Schedule 13D originally filed on June 5, 2001, as amended by Amendment No. 1, filed on June 21, 2001, as further amended by Amendment No. 2, filed on July 27, 2001, as further amended by Amendment No. 3, filed on September 6, 2002, as further amended by Amendment No. 4, filed on October 2, 2002, as further amended by Amendment No. 5, filed on February 21, 2003, as further amended by Amendment No. 6, filed on September 3, 2003, as further amended by Amendment No. 7, filed on December 8, 2003, as further amended by Amendment No. 8, filed on February 3, 2004, as further amended by Amendment No. 9, filed on June 29, 2004 and as further amended by Amendment No. 10, filed on August 19, 2004 (as so amended, the "Original 13D"), on behalf of ev3 LLC, a Delaware limited liability company ("ev3 LLC"), Micro Investment, LLC, a Delaware limited liability company ("Micro LLC"), Warburg, Pincus Equity Partners, L.P., a Delaware limited partnership (together with three affiliated entities, "WPEP"), Warburg Pincus LLC, a New York limited liability company ("WP LLC"), Warburg Pincus & Co., a New York general partnership ("WP"), and, with respect to this Amendment No. 11 to the Original 13D, Warburg Pincus Partners LLC, a New York limited liability company ("WPP LLC" and together with WPEP, WP LLC, and WP, the "Warburg Pincus Reporting Persons"). This Amendment No. 11 to the Original 13D relates to the common stock, par value $0.001 per share (the "Common Stock"), of Micro Therapeutics, Inc., a Delaware corporation (the "Company"). Unless otherwise indicated herein, each capitalized term used but not defined herein shall have the meaning ascribed to such term in the Original 13D. ev3 LLC, Micro LLC and the Warburg Pincus Reporting Persons are hereinafter collectively referred to as the "Reporting Persons." This Amendment No. 11 to the Original 13D adds WPP LLC as a "Reporting Person." Item 2. Identity and Background. Items 2(a) and (c) are hereby amended by supplementing the information with respect to each of the Warburg Pincus Reporting Persons with the following: (a) The sole general partner of WPEP is WPP LLC. WP is the sole managing member of WPP LLC. WP LLC manages WPEP. (c) The principal business of WPEP is that of making private equity and related investments. The principal business of WPP LLC is acting as sole general partner of WPEP and several other related partnerships. The principal business of WP is acting the managing member of WPP LLC. The principal business of WP LLC is acting as manager of WPEP and several other related partnerships. Item 3. Source and Amount of Funds or Other Consideration. Item 3 of the Original 13D is hereby amended by adding the following paragraphs at the end of the discussion: Pursuant to a Contribution and Exchange Agreement (the "Contribution Agreement"), dated as of April 4, 2005, by and among WPEP and the other investors named therein (the "Contributors"), the Company, ev3 LLC and ev3 Inc., a Delaware corporation ("ev3 Inc."), the Contributors have agreed, upon the terms and subject to the conditions set forth in the Contribution Agreement, to contribute (the "Contribution") to ev3 LLC an aggregate of 9,704,819 shares of Common Stock collectively owned by them, including 7,593,384 shares owned by WPEP. The Contribution Agreement was entered into in connection with certain reorganization transactions relating to the proposed initial public offering of common stock, par value $0.01 per share, of ev3 Inc. (the "IPO"). Subject to the terms and conditions set forth in the Contribution Agreement, the Contribution will take place within two business days of the date on which a registration statement containing the range of estimated IPO prices and the ratio of reverse stock split contemplated in connection with the IPO is first filed by ev3 Inc. with the Securities and Exchange Commission. Upon the closing of the Contribution, each Contributor will receive a number of common membership units of ev3 LLC determined by a formula set forth in the Contribution Agreement. Concurrent with the execution and delivery of the Contribution Agreement, WPEP, ev3 Inc. and certain other investors in the Company entered into a Corporate Opportunity Agreement, dated as of April 4, 2005 (the "Corporate Opportunity Agreement"). Pursuant to the Corporate Opportunity Agreement, WPEP has agreed that, until WPEP and certain other investors in the Company collectively beneficially own less than 10% of the common stock of ev3 Inc. or if the Corporate Opportunity Agreement is earlier terminated by the parties thereto, WPEP will forward any financing requests received from the Company to ev3 Inc. so that ev3 Inc. may have thirty days (subject to extension upon certain circumstances) to negotiate with the Company to provide the financing requested by the Company. Additionally, WPEP has agreed that before it makes any financial investment in the Company, ev3 Inc. shall have the right of first refusal to pursue a financial investment in the Company on the same proposed terms on which WPEP was prepared to invest in the Company. A copy of the Contribution Agreement is filed as Exhibit 1 hereto. A copy of the Corporate Opportunity Agreement is filed as Exhibit 2 hereto. The Contribution Agreement and the Corporate Opportunity Agreement are incorporated herein by reference and the foregoing summary of the Contribution Agreement and the Corporate Opportunity Agreement is qualified in its entirety by reference to those exhibits. Item 4. Purpose of Transaction. Item 4 of the Original 13D is hereby amended by adding the following paragraph at the end of the discussion: The Contribution Agreement was entered into by the Company, ev3 LLC, ev3 Inc. and the Contributors in connection with a reorganization that is being effected by, among others, ev3 Inc. and the Contributors in connection with the initial public offering of common stock, par value $0.01 per share, of ev3 Inc. Upon the closing of the Contribution, the Contributors will contribute an aggregate of 9,704,819 shares of Common Stock to ev3 LLC in exchange for the number of common membership units of ev3 LLC determined by a formula set forth in the Contribution Agreement. Item 5. Interest in Securities of the Issuer. Items 5(a), (b) and (c) are hereby amended and restated in their entirety to read as follows: (a) As of April 4, 2005, (i) ev3 LLC may be deemed to beneficially own 34,041,578 shares of Common Stock, representing 70.3% of the outstanding Common Stock, (ii) Micro LLC may be deemed to beneficially own 24,336,759 shares of Common Stock, representing 50.3% of the outstanding Common Stock, and (iii) the Warburg Pincus Reporting Persons may be deemed to beneficially own 34,041,578 shares of Common Stock, representing 70.3% of the outstanding Common Stock. The foregoing percentages for ev3 LLC, Micro LLC and the Warburg Pincus Reporting Persons were calculated by dividing (a) the shares of Common Stock each of ev3 LLC, Micro LLC and the Warburg Pincus Reporting Persons may be deemed to beneficially own by (b) the 48,427,305 shares of Common Stock outstanding as of March 23, 2005, as represented by the Company in its Form 10-KSB for the year ended December 31, 2004. By reason of their respective relationships with ev3 LLC and each other, each of the Warburg Pincus Reporting Persons may be deemed under Rule 13d-3 of the Exchange Act to own beneficially all of the shares of Common Stock that ev3 LLC owns. By reason of its ownership of Micro LLC, ev3 LLC may be deemed under Rule 13d-3 of the Exchange Act to own beneficially all of the shares of Common Stock that Micro LLC owns. (b) Each of ev3 LLC and Micro LLC share the power to vote or to direct the vote and to dispose or to direct the disposition of the 24,336,759 shares of Common Stock owned directly by Micro LLC. Each of the Warburg Pincus Reporting Persons shares with ev3 LLC the power to vote or to direct the vote and to dispose or to direct the disposition of 34,041,578 shares of Common Stock ev3 LLC may be deemed to beneficially own. Each of the Warburg Pincus Reporting Persons shares with the other Warburg Pincus Reporting Persons, the power to vote or to direct the vote and to dispose or to direct the disposition of all of the shares of Common Stock it may be deemed to beneficially own. The Reporting Persons are making this single, joint filing because they may be deemed to constitute a "group" within the meaning of Section 13(d)(3) of the Exchange Act. (c) Other than the acquisition of beneficial ownership of 9,704,819 shares of Common Stock by ev3 LLC on April 4, 2005 pursuant to the Contribution Agreement, no transactions in the Common Stock were effected during the past sixty days by the Reporting Persons or, to the knowledge of the Reporting Persons, any of the persons set forth on Schedule I, Schedule II or in Item 2(d) hereto. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Item 6 of the Original 13D is hereby amended to add the following: As described in Item 3 hereto, the Company, ev3 LLC, ev3 Inc., WPEP and certain other investors party thereto have entered into the Contribution Agreement. The information set forth in Item 3 with respect to the Contribution Agreement is incorporated into this Item 6 by reference. As described in Item 3 hereto, WPEP, ev3 Inc. and certain other investors in the Company have entered into the Corporate Opportunity Agreement. The information set forth in Item 3 with respect to the Corporate Opportunity Agreement is incorporated into this Item 6 by reference. Item 7. Material to Be Filed as Exhibits. Exhibit 1. Contribution and Exchange Agreement, dated as of April 4, 2005, by and among the Company, ev3 LLC, ev3 Inc., WPEP and the other investors party thereto. Exhibit 2. Corporate Opportunity Agreement, dated as of April 4, 2005, by and among WPEP, ev3 Inc. and certain other parties thereto. Exhibit 3. Second Amended and Restated Joint Filing Agreement, dated as of April 4, 2005, among ev3 LLC, Micro LLC, ev3 Inc. and the Warburg Pincus Reporting Persons. SIGNATURES After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: April 5, 2005 EV3 LLC By: /s/ James M. Corbett ------------------------------------ Name: James M. Corbett Title: President and Chief Executive Officer Dated: April 5, 2005 MICRO INVESTMENT, LLC By: ev3 LLC, Managing Member By: /s/ James M. Corbett ------------------------------------ Name: James M. Corbett Title: President and Chief Executive Officer Dated: April 5, 2005 WARBURG, PINCUS EQUITY PARTNERS, L.P. By: Warburg Pincus Partners LLC, its General Partner By: Warburg Pincus & Co., its Managing Member By: /s/ Sean D. Carney ------------------------------------ Name: Sean D. Carney Title: Partner Dated: April 5, 2005 WARBURG PINCUS & CO. By: /s/ Sean D. Carney ------------------------------------ Name: Sean D. Carney Title: Partner Dated: April 5, 2005 WARBURG PINCUS LLC By: /s/ Sean D. Carney ------------------------------------ Name: Sean D. Carney Title: Member Dated: April 5, 2005 WARBURG PINCUS PARTNERS LLC By: Warburg Pincus & Co., its Managing Member By: /s/ Sean D. Carney ------------------------------------ Name: Sean D. Carney Title: Partner EX-1 2 m2777679.txt CONTRIBUTION & EXCHANGE AGREEMENT Exhibit 1 CONTRIBUTION AND EXCHANGE AGREEMENT This Contribution and Exchange 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"), ev3 LLC, a Delaware limited liability company ("ev3 LLC"), ev3 Inc., a Delaware corporation (the "Company"), and Micro Therapeutics, Inc., a Delaware corporation ("MTI"). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in Section 9.1 of this Agreement. R E C I T A L S WHEREAS, the Stockholders are the owners of the number of shares of common stock, par value $0.001 per share, of MTI ("MTI Common Stock") set forth opposite such Stockholders' names on Schedule II hereto (collectively, the "MTI Shares"), representing all of the MTI Common Stock 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); WHEREAS, the Company intends to file a Registration Statement on Form S-1 (the "Registration Statement") with the 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, simultaneously with the execution of this Agreement, the Company and ev3 LLC will enter into an agreement and plan of merger (the "Merger Agreement") pursuant to which ev3 LLC will agree, on the terms and subject to the conditions set forth in the Merger Agreement, to merge (the "Merger") with and into the Company with the Company surviving the Merger, as more fully described in the Merger Agreement; WHEREAS, simultaneously with the execution of this Agreement, the Company and certain noteholders named therein will enter into a note contribution and exchange agreement (the "Note Contribution Agreement") pursuant to which the noteholders will agree, on the terms and subject to the conditions set forth in the Note Contribution Agreement, to contribute to the Company notes of ev3 Endovascular, Inc., which following the Merger will be a wholly owned subsidiary of the Company, in exchange for Company Common Stock, as more fully described in the Note Contribution Agreement; WHEREAS, on the terms and subject to the conditions set forth in this Agreement, including, without limitation, Article VII herein, effective at the Closing (as defined in Section 2.1) the Stockholders desire to contribute to ev3 LLC, and ev3 LLC desires to accept from the Stockholders, the shares of MTI Common Stock owned by them as a contribution to capital (the "Contribution"), in exchange (the "Exchange") for the issuance to the Stockholders of the number of common membership units of ev3 LLC determined in the manner set forth in Section 1.3 below (collectively, the "Common Membership Units"); and WHEREAS, for the purpose of Section 203 of the Delaware General Corporation Law ("DGCL") and the Rights Agreement, MTI desires to acknowledge the Contribution and Exchange and make certain representations, warranties and covenants related thereto. 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. CONTRIBUTION AND EXCHANGE Section 1.1. Contribution of MTI Common Stock. On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions hereof, including, without limitation, the satisfaction (or waiver, to the extent permitted by this Agreement and applicable law) of the conditions set forth in Article VII of this Agreement, effective at the Closing each of the Stockholders hereby agrees to contribute, transfer, assign and convey to ev3 LLC all right, title and interest in and to all of the shares of MTI Common Stock owned directly by such Stockholder, which MTI Shares are set forth opposite such Stockholder's name on Schedule II hereto, together with any and all rights, privileges, benefits, obligations and liabilities appertaining thereto, reserving unto such Stockholder no rights or interests therein whatsoever, to have and to hold the same unto ev3 LLC and its heirs, legal representatives, successors and assigns, from and after the Closing to its own proper use forever. Section 1.2. Acceptance of Contribution. On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions hereof, effective at the Closing ev3 LLC hereby agrees to accept the Contribution of the MTI Common Stock pursuant to Section 1.1. Section 1.3. Exchange. In consideration of the Contribution by the Stockholders and on the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions hereof, on the Closing Date and in exchange for the MTI Shares contributed to ev3 LLC pursuant to Section 1.1, ev3 LLC shall issue and deliver to each Stockholder the number of Common Membership Units determined by dividing (i) the product obtained by multiplying (A) the number of shares of MTI Common Stock owned directly by such Stockholder (as set forth opposite the respective Stockholder's name on Schedule II hereto) by (B) the quotient obtained by dividing (1) the sum of the daily closing prices per share of MTI Common Stock as quoted on the NASDAQ National Market (symbol "MTIX") and reported in The Wall Street Journal (Northeast Edition), absent manifest error, for the twenty (20) consecutive trading days from and including the date the Registration Statement is first filed by the Company with the SEC by (2) twenty (20), by (ii) the per share Split-Adjusted Midpoint (as defined below). In the event the daily closing price per share of MTI Common Stock as quoted on the NASDAQ National Market differs from the daily closing price reported in The Wall Street Journal (Northeast Edition), the daily closing price per share of MTI Common Stock as quoted on the NASDAQ National Market shall control. The "Split-Adjusted Midpoint" shall equal the quotient obtained by dividing (i) the midpoint of the range of estimated initial public offering prices as set forth on the cover of the Preliminary Prospectus by (ii) the number of shares of Company Common Stock necessary to obtain one share of Company Common Stock in connection with the reverse split to be declared with respect to Company Common Stock that is to take effect prior to the consummation of the Initial Public Offering (the "Reverse Split"). For example, if the Preliminary Prospectus states that the Company will effect a 1 for 5 Reverse Split, clause (ii) of the definition of Split-Adjusted Midpoint shall equal 5. Section 1.4. No Fractional Units Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional Common Membership Units shall be issued to any Stockholder in connection with the Exchange. Instead, any fractional Common Membership Units that a Stockholder would otherwise be entitled to receive as a result of the Exchange shall be rounded up to the nearest whole number of Common Membership Units. Section 1.5. Power of Attorney. From and after the Closing Date, each Stockholder constitutes and appoints ev3 LLC, its successors and assigns, as the Stockholder's true and lawful attorney-in-fact, with full power of substitution, in the name of ev3 LLC or in the name of the Stockholder, to execute, deliver, file and/or record such documents, agreements and instruments as shall be necessary or appropriate to effect the Contributions pursuant to this Article I. The foregoing powers are coupled with an interest and shall be irrevocable. Section 1.6. Characterization. The Contribution, the transactions described in the Merger Agreement and the Note Contribution Agreement and the public's purchase of stock in the Initial Public Offering are part of an integrated plan and are intended together to qualify as a tax-free transaction under Section 351 of the Internal Revenue Code of 1986, as amended. ARTICLE II. CLOSING Section 2.1. Closing. The closing of the transactions contemplated by this Agreement (the "Closing") shall take place at 9:30 a.m., New York City time, on a date as may be mutually agreed to by ev3 LLC and the Stockholders that is within two (2) business days of the date the Preliminary Prospectus is first filed by the Company with the SEC (the "Closing Date"); provided, that on or before the Closing Date, all of the conditions set forth in Article VII shall have been fulfilled or waived in accordance with this Agreement, at the offices of King & Spalding LLP, 1185 Avenue of the Americas, New York, New York, or such other location as ev3 LLC, the Company and the Stockholders shall mutually select. Section 2.2. Closing Deliveries. At the Closing, (a) Each Stockholder shall deliver to ev3 LLC the stock certificates representing the MTI Shares being contributed by such Stockholder, duly endorsed or accompanied by a duly executed stock power, all in appropriate form and sufficient for transfer of the MTI Shares to ev3 LLC. (b) ev3 LLC shall deliver to each Stockholder an amended Schedule B to the operating agreement of ev3 LLC (the "Operating Agreement") reflecting the Contribution and Exchange as contemplated by Section 4.1 thereof. [K&S: Need to include mechanism in merger agreement to adjust the schedule to the merger agreement to include the common membership units issued.] (c) MTI shall deliver to ev3 LLC, the Company and each Stockholder a certificate, dated the Closing Date, of the Secretary of MTI certifying to and attaching the resolutions of its Board of Directors and the Special Independent Committee setting forth the authorizations and approvals contemplated by Sections 5.2 and 5.3 of this Agreement. ARTICLE III. REPRESENTATIONS AND WARRANTIES OF ev3 LLC ev3 LLC represents and warrants to each of the Stockholders as follows: Section 3.1. Organization. ev3 LLC is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. Section 3.2. Authority. The Board of Managers of ev3 LLC has authorized the execution, delivery and performance of this Agreement and the transactions contemplated hereby, including, without limitation, the issuance and delivery of the Common Membership Units to the Stockholders in accordance with the terms of this Agreement and the Operating Agreement. No other 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 ev3 LLC, enforceable against ev3 LLC 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. Issuance of Common Membership Units. The Common Membership Units to be issued by ev3 LLC pursuant to this Agreement, when issued in accordance with the provisions hereof, will be validly issued by ev3 LLC, fully paid and nonassessable, and no member of ev3 LLC has, or will have, any preemptive rights to subscribe for any Common Membership Units. [K&S: Confirm you are obtaining a waiver of the subscription rights in the Holders Agreement.] Section 3.4. Consents; Conflicts. Except with respect to filings made in connection with exemptions from registration under state or federal securities laws, the creation, authorization, issuance, offer and sale of the Common Membership Units hereunder do not require any consent, approval or authorization of, or filing, registration or qualification with, any Person or governmental authority on the part of ev3 LLC or the vote, consent or approval in any manner of the holders of any security of ev3 LLC as a condition to the execution and delivery of this Agreement or the creation, authorization, issuance, offer and sale of the Common Membership Units hereunder. The execution and delivery by ev3 LLC of this Agreement and the performance by ev3 LLC of its obligations hereunder will not violate (i) the terms and conditions of the Operating Agreement of ev3 LLC, or any agreement or instrument to which ev3 LLC is a party or by which it is bound or (ii) subject to the accuracy of the Stockholders' representations and warranties contained herein, including, without limitation, the representations and warranties contained in Section 4.3 hereof, or any federal or state law. ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS Each of the Stockholders, severally and not jointly, represents and warrants to ev3 LLC as follows: Section 4.1. Title to Securities. The Stockholder is the direct owner and holder of the respective number of shares of MTI Common Stock set forth opposite such Stockholder's name on Schedule II hereto and has good and valid title to such MTI Common Stock, free and clear of all liens, claims and encumbrances. Section 4.2. Authority. The Stockholder has full right, power and authority to contribute, transfer, assign and convey to ev3 LLC the full legal and beneficial ownership in the MTI Common Stock to be surrendered by such Stockholder pursuant to this Agreement and to consummate the transactions contemplated herein. 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. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby nor compliance with any of the provisions hereof will (a) result in any conflict with, breach of, or default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any agreement or other instrument or obligation to which such Stockholder is a party or by which such Stockholder or any of such Stockholder's properties or assets may be bound or (b) violate any order, writ, injunction, judgment, decree, law, statute, rule or regulation applicable to such Stockholder or any of such Stockholder's properties or assets. No action, consent or approval by, or filing with, any federal, state, municipal, foreign or other court or governmental or administrative body or agency, or any other regulatory or self-regulatory body, is required in connection with the execution and delivery by the Stockholder of this Agreement or the consummation by such Stockholder of the transactions contemplated hereby. Section 4.3. Accredited Investor. (a) Offering Exemption. The Stockholder acknowledges that transfer of the Common Membership Units pursuant to this Agreement has not been registered under the Securities Act, nor registered or qualified under any state securities laws, and that the Common Membership Units are being offered and sold pursuant to an exemption from such registration and qualification based in part upon such Stockholder's representations contained herein. (b) Knowledge of Offer. The Stockholder is familiar with the business and operations of ev3 LLC and has been given the opportunity to obtain from ev3 LLC all information that such Stockholder has requested regarding its business plans and prospects. (c) Knowledge and Experience; Ability to Bear Economic Risks. The Stockholder has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the investment contemplated by this Agreement, and is able to bear the economic risk of this investment in ev3 LLC (including a complete loss of the value of the Common Membership Units). (d) Limitations on Disposition. The Stockholder recognizes that no public market exists for the Common Membership Units, and none may exist in the future. The Stockholder acknowledges that it must bear the economic risk of this investment indefinitely unless such Stockholder's Common Membership Units are registered pursuant to the Securities Act, or an exemption from such registration is available, and unless the disposition of such Common Membership Units is qualified or registered under applicable state securities laws or an exemption from such qualification or registration is available, and that ev3 LLC has no present intention of so registering the Common Membership Units. The Stockholder acknowledges that there is no assurance that any exemption from the Securities Act will be available, or, if available, that such exemption will allow such Stockholder to transfer any or all of the Common Membership Units, in the amounts, or at the times such Stockholder might propose. The Stockholder acknowledges that at the present time Rule 144 promulgated under the Securities Act by the SEC ("Rule 144") is not applicable to sales of the Common Membership Units because such units are not registered under Section 12 of the Exchange Act, and there is not publicly available the information concerning ev3 LLC specified in Rule 144. The Stockholder acknowledges that ev3 LLC is not presently under any obligation to register under Section 12 of the Exchange Act or to make publicly available the information specified in Rule 144 and that it may never be required to do so. (e) Accredited Investor. The Stockholder is an "accredited investor" as such term is defined in Rule 501(a) promulgated under the Securities Act. Section 4.4. Capacity. The Stockholder has full power and legal right to execute and deliver this Agreement and to perform such Stockholder's obligations hereunder. ARTICLE V. REPRESENTATIONS AND WARRANTIES OF MTI MTI represents and warrants to the Company, ev3 LLC and each of the Stockholders as follows: Section 5.1. Organization. MTI is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Section 5.2. Authority. The Board of Directors of MTI, including the Special Independent Committee, has 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 MTI, enforceable against MTI 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 5.3. Takeover Statute; Rights Agreement. MTI has taken all necessary actions such that the provisions of Section 203 of the DGCL do not and will not apply to (i) this Agreement or the Contribution or (ii) the contribution, if any, on or following the Closing Date, of the MTI Shares by ev3 LLC to Micro Investment, LLC, a Delaware limited liability company ("MI LLC") (as contemplated by Section 6.5 below), which will be a wholly owned subsidiary of the Company following the Initial Public Offering. This Agreement shall constitute an "agreement," "transaction" and "understanding" within the meaning of Section 1(a)(iii) of the Rights Agreement. The Board of Directors of MTI has approved this Agreement and the transactions contemplated hereby as contemplated by Section 1(a)(iii) of the Rights Agreement. As a result, as a consequence of this Agreement and the transactions contemplated hereby, (i) each of the Company, ev3 LLC, the Stockholders and MI LLC shall not be an "Acquiring Person" within the meaning of the Rights Agreement, (ii) a "Triggering Event" (as defined in the Rights Agreement) shall not have occurred and (iii) the Rights (as defined in the Rights Agreement) shall not separate from the MTI Common Stock as a result of any of the transactions contemplated hereby. ARTICLE VI. COVENANTS OF THE PARTIES Section 6.1. Further Assurances. From and after the Closing Date, each Stockholder will execute and deliver, or cause to be executed and delivered, such additional or further transfers, assignments, endorsements and other instruments as ev3 LLC may reasonably request for the purpose of effectively carrying out the transfer of the MTI Shares and the other transactions contemplated by this Agreement. Section 6.2. Takeover Statute. If any Takeover Statute shall become applicable to the transactions contemplated hereby, including, without limitation, any takeover provision under the laws of the State of Delaware, the Company, ev3 LLC, MTI and the members of the Boards of Directors or Board of Managers, as the case may be, of the Company, ev3 LLC and MTI, as necessary, shall grant such approvals and take such actions as are necessary so that the transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated hereby and otherwise act to eliminate or minimize the effects of such statue or regulation on the transactions contemplated hereby. Section 6.3. Rights Agreement Inapplicable. If the transactions contemplated hereby, including, without limitation, the Contribution, the Exchange and the contribution, if any, on or following the Closing Date of the MTI Shares to MI LLC, would (a) result in the occurrence of a "Triggering Event" under the Rights Agreement, (b) cause the Company, ev3 LLC, any Stockholder or MI LLC to become an "Acquiring Person" as defined in the Rights Agreement or (c) otherwise cause the exercise of any "Right" issued pursuant to the Rights Agreement or the issuance or exercise of any "Rights Certificate" under the Rights Agreement, MTI will promptly cause the Rights Agreement to be duly amended to prevent any such characterization. Section 6.4. HSR Act. To the extent required, the Company, ev3 LLC, MTI and/or the Stockholders agree to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable. ev3 LLC shall be responsible for any and all costs and expenses incurred by the Stockholders in connection with any such HSR Act filings. Section 6.5. Transfer of MTI Common Stock to MI LLC. MTI acknowledges that following the IPO Closing Date, ev3 LLC may, but is not obligated to, transfer some or all of the MTI Shares to MI LLC. If reasonably requested by ev3 LLC, MTI shall, in addition to its obligations pursuant to Sections 6.2 and 6.3 above, execute and deliver, or cause to be executed and delivered, such approvals or documents as ev3 LLC may reasonably request for the purpose of effectively carrying out the transfer of the MTI Common Stock to MI LLC. ARTICLE VII. CONDITIONS TO CLOSING The obligations of ev3 LLC and each of the Stockholders to effect the Contribution and the Exchange on the Closing Date shall be subject to the satisfaction, prior thereto or concurrently therewith, or waiver, of the following conditions: Section 7.1. Injunction. No statute, rule, regulation, executive order, decree or ruling shall have been adopted or promulgated, and no temporary restraining order, preliminary or permanent injunction or other order issued by a court or other U.S. or foreign governmental authority of competent jurisdiction shall be in effect, having the effect of making the Contribution, the Exchange and/or the Initial Public Offering, illegal or otherwise prohibiting consummation of the transactions contemplated by this Agreement. Section 7.2. HSR Act. The waiting period (and any extension thereof) applicable to the transactions contemplated by this Agreement and/or the Initial Public Offering under the HSR Act shall have been terminated or shall have expired. ARTICLE VIII. TERMINATION Section 8.1. Termination. (a) Mutual Consent. This Agreement may be terminated with the mutual written consent of ev3 LLC, the Company and each Stockholder. (b) Outside Date. Unless otherwise agreed by ev3 LLC and the Stockholders, this Agreement may be terminated by ev3 LLC or the Stockholders (jointly and not severally) in the event that the Initial Public Offering shall not have occurred on or before September 30, 2005. Section 8.2. Effect of Termination. If this Agreement is terminated pursuant to Section 8.1, ev3 LLC shall remain obligated to reimburse each Stockholder for the expenses described in Section 9.5 of this Agreement. In the event this Agreement shall be terminated, the parties agree to take any and all actions and to file any and all instruments and documents as shall be necessary, appropriate or, upon the reasonable request of any party hereto, desirable, in order to restore all parties, including the Stockholders, to their respective rights and obligations as if this Agreement had not been executed. ARTICLE IX. MISCELLANEOUS PROVISIONS Section 9.1. Terms Defined. As used in this Agreement, the following terms have the respective meaning set forth below: (a) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. (b) "HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder. (c) "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. (d) "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. (e) "Preliminary Prospectus" shall mean the first prospectus filed with the SEC which contains on the cover thereof (i) a range of estimated initial public offering prices in connection with the Initial Public Offering and (ii) the ratio to be applied in connection with the Reverse Split. (f) "Rights Agreement" shall mean the Rights Agreement, dated as of June 3, 1999, between MTI and U.S. Stock Transfer Corporation, as Rights Agent, as amended. (g) "SEC" shall mean the Securities and Exchange Commission. (h) "Securities Act" shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. (i) "Special Independent Committee" shall mean the special independent committee of the Board of Directors of MTI consisting of Richard D. Randall and George Wallace. (j) "Takeover Statute" shall mean any corporate takeover provision under laws of the State of Delaware or any other state or federal "fair price," "moratorium," "control share acquisition" or other similar antitakeover statute or regulation. Section 9.2. 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: (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 ev3 LLC, the other Stockholders and MTI in writing; (b) if to the Company, at 4600 Nathan Lane North, Plymouth, Minnesota 55442 (facsimile: (763) 398-7200), 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; (c) if to ev3 LLC, at 4600 Nathan Lane North, Plymouth, Minnesota 55442 (facsimile: (763) 398-7200), marked for attention of President, or at such other address or facsimile as ev3 LLC may have furnished in writing to each of the Stockholders and MTI; and (d) if to MTI, at 2 Goodyear, Irvine, California 92618 (facsimile: (949) 465-1743), marked for attention of President, or at such other address or facsimile number as MTI may have furnished in writing to ev3 LLC, the Company and each of the Stockholders. 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 9.3. 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, ev3 LLC and each of the Stockholders, and, solely with respect to Articles V, VI and IX, MTI. Section 9.4. 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, ev3 LLC 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 9.5. Expenses and Taxes. (a) Whether or not the Closing occurs, ev3 LLC agrees to pay the Stockholder's and MTI's out-of-pocket expenses, including the reasonable fees and disbursements of one counsel selected by the Stockholders and counsel selected by MTI, 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. (b) ev3 LLC will pay, and save and hold each Stockholder harmless from any and all liabilities (including interest and penalties) with respect to, or resulting from any delay or failure in paying, stamp and other taxes (other than income taxes), if any, which may be payable or determined to be payable as a result of the transactions contemplated by this Agreement. Section 9.6. 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 Schedules to this Agreement are incorporated herein and made a part hereof and are an integral part of this Agreement. Section 9.7. 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 9.8. 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 9.9. 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 9.10. 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 9.11. 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 9.12. 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 9.13. Survival of Provisions. The respective representations, warranties, covenants and agreements of each of the parties to this Agreement shall survive the execution of this Agreement and the consummation of the transactions contemplated by this Agreement. [Remainder of page intentionally left blank] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. ev3 LLC By: /s/ James M. Corbett --------------------------- Name: James M. Corbett Title: President and Chief Executive Officer ev3 Inc. By: /s/ James M. Corbett --------------------------- Name: James M. Corbett Title: President and Chief Executive Officer WARBURG, PINCUS EQUITY PARTNERS, L.P. By: Warburg Pincus Partners LLC, its General Partner By: Warburg Pincus & Co., its Managing Member By: /s/ Elizabeth H. Weatherman --------------------------- Name: Elizabeth H. Weatherman Title: Partner WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS I, C.V. By: Warburg Pincus Partners LLC, its General Partner By: Warburg Pincus & Co., its Managing Member By: /s/ Elizabeth H. Weatherman --------------------------- Name: Elizabeth H. Weatherman Title: Partner WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS II, C.V. By: Warburg Pincus Partners LLC, its General Partner By: Warburg Pincus & Co., its Managing Member By: /s/ Elizabeth H. Weatherman --------------------------- Name: Elizabeth H. Weatherman Title: Partner WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS III, C.V. By: Warburg Pincus Partners LLC, its General Partner By: Warburg Pincus & Co., its Managing Member By: /s/ Elizabeth H. Weatherman --------------------------- Name: Elizabeth H. Weatherman Title: Partner VERTICAL FUND I, L.P. By: Vertical Group, L.P., General Partner By: /s/ John E. Runnells --------------------------- Name: John E. Runnells Title: General Partner VERTICAL FUND II, L.P. By: Vertical Group, L.P., General Partner By: /s/ John E. Runnells --------------------------- Name: John E. Runnells Title: General Partner MICRO THERAPEUTICS, INC. By: /s/ Thomas C. Wilder III --------------------------- Name: Thomas C. Wilder III Title: President and CEO EX-2 3 m2781882.txt CORPORATE OPPORTUNITY AGREEMENT 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. -2- 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. -3- (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: -4- 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. -5- 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: -6- (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 4600 Nathan Lane North, Plymouth, Minnesota 55442 (facsimile: (763) 398-7200), 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 -7- 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 -8- execution of this Agreement and the consummation of the transactions contemplated by this Agreement. [Remainder of page intentionally left blank] -9- 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/ James M. Corbett ------------------------------------- Name: James M. Corbett Title: President and Chief Executive Officer WARBURG, PINCUS EQUITY PARTNERS, L.P. By: Warburg Pincus Partners LLC, General Partner By: Warburg Pincus & Co., Managing Member By: /s/ Elizabeth H. Weatherman ------------------------------------- Name: Elizabeth H. Weatherman Title: Partner WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS I, C.V. By: Warburg Pincus Partners LLC, General Partner By: Warburg Pincus & Co., Managing Member By: /s/ Elizabeth H. Weatherman ------------------------------------- Name: Elizabeth H. Weatherman Title: Partner WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS II, C.V. By: Warburg Pincus Partners LLC, General Partner By: Warburg Pincus & Co., Managing Member By: /s/ Elizabeth H. Weatherman ------------------------------------- Name: Elizabeth H. Weatherman Title: Partner WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS III, C.V. By: Warburg Pincus Partners LLC, General Partner By: Warburg Pincus & Co., Managing Member By: /s/ Elizabeth H. Weatherman ------------------------------------- Name: Elizabeth H. Weatherman Title: Partner VERTICAL FUND I, L.P. By: Vertical Group, L.P., General Partner By: /s/ John E. Runnells ------------------------------------- Name: John E. Runnells Title: General Partner VERTICAL FUND II, L.P. By: Vertical Group, L.P., General Partner By: /s/ John E. Runnells ------------------------------------- Name: John E. Runnells Title: General Partner EX-3 4 m2789754.txt 2ND AMENDED AND RESTATED JOINT FILING AGMT Exhibit 3 SECOND AMENDED AND RESTATED JOINT FILING AGREEMENT THIS SECOND AMENDED AND RESTATED JOINT FILING AGREEMENT is entered into as of April 4, 2005, by and among the parties signatories hereto. This Second Amended and Restated Joint Filing Agreement amends and restates the Amended and Restated Joint Filing Agreement, dated August 29, 2003, filed as Exhibit A to Amendment No. 6 of the Schedule 13D filed on September 3, 2003 (the "Statement on Schedule 13D"). The undersigned hereby agree that the Statement on Schedule 13D with respect to the shares of common stock, par value $0.001 per share, of Micro Therapeutics, Inc., a Delaware corporation, is, and any amendment thereafter signed by each of the undersigned shall be, filed on behalf of each undersigned pursuant to and in accordance with the provisions of 13d-1(k) under the Securities Exchange Act of 1934, as amended. Dated: April 4, 2005 EV3 LLC By: /s/ James M. Corbett -------------------------------- Name: James M. Corbett Title: President and Chief Executive Officer Dated: April 4, 2005 MICRO INVESTMENT, LLC By: ev3 LLC, Managing Member By: /s/ James M. Corbett -------------------------------- Name: James M. Corbett Title: President and Chief Executive Officer Dated: April 4, 2005 WARBURG, PINCUS EQUITY PARTNERS, L.P. By: Warburg Pincus Partners LLC, its General Partner By: Warburg Pincus & Co., its Managing Member By: /s/ Sean D. Carney -------------------------------- Name: Sean D. Carney Title: Partner Dated: April 4, 2005 WARBURG PINCUS & CO. By: /s/ Sean D. Carney -------------------------------- Name: Sean D. Carney Title: Partner Dated: April 4, 2005 WARBURG PINCUS LLC By: /s/ Sean D. Carney -------------------------------- Name: Sean D. Carney Title: Member Dated: April 4, 2005 WARBURG PINCUS PARTNERS LLC By: Warburg Pincus & Co., its Managing Member By: /s/ Sean D. Carney -------------------------------- Name: Sean D. Carney Title: Partner