This excerpt taken from the EVVV 10-Q filed Aug 17, 2005.
Introductory. ev3 Inc., a Delaware corporation (the Company), proposes to issue and sell to the several underwriters named in Schedule A (the Underwriters) an aggregate of 11,765,000 shares (the Firm Common Shares) of its Common Stock, par value $0.01 per share (the Common Stock). In addition, the Company has granted to the Underwriters an option to purchase up to an additional 1,728,850 shares of Common Stock and the stockholder of the Company named in Schedule B (in his individual capacity and not in his capacity as a director of the Company) (the Selling Stockholder) has granted to the Underwriters an option to purchase up to an additional 35,900 shares of Common Stock, all as provided in Section 2. The additional 1,728,850 shares that may be sold by the Company and the additional 35,900 shares that may be sold by the Selling Stockholder pursuant to such option are collectively called the Optional Common Shares. The Firm Common Shares and, if and to the extent such option is exercised, the Optional Common Shares are collectively called the Common Shares. Piper Jaffray & Co. (Piper) and Banc of America Securities LLC (BAS) have agreed to act as representatives of the several Underwriters (in such capacity, the Representatives) in connection with the offering and sale of the Common Shares.
The Company and the Underwriters agree that up to 588,250 of the Firm Common Shares to be purchased by the Underwriters (the Directed Shares) shall be reserved for sale by the Underwriters to certain eligible directors, officers and employees of the Company and persons having business relationships with the Company (collectively, the Participants), as part of the distribution of the Common Shares by the Underwriters (the Directed Share Program) subject to the terms of this Agreement, the applicable rules, regulations and interpretations of the NASD, Inc. (the NASD) and all other applicable laws, rules and regulations. One of the Underwriters (the Designated Underwriter) shall be selected to process the sales to the Participants under the Directed Share Program. To the extent that such Directed Shares are not orally confirmed for purchase by the Participants by the end of the first business day after the date of this Agreement, such Directed Shares may be offered to the public as part of the public offering contemplated hereby.
The Company has prepared and filed with the Securities and Exchange Commission (the Commission) a registration statement on Form S-1 (File No. 333-123851), which contains a
form of prospectus to be used in connection with the public offering and sale of the Common Shares. Such registration statement, as amended, including the financial statements, exhibits and schedules thereto, in the form in which it was declared effective by the Commission under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the Securities Act), including any information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430A under the Securities Act, is called the Registration Statement. Any registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act is called the Rule 462(b) Registration Statement, and from and after the date and time of filing of the Rule 462(b) Registration Statement the term Registration Statement shall include the Rule 462(b) Registration Statement. Such prospectus, in the form first used by the Underwriters to confirm sales of the Common Shares, is called the Prospectus. The preliminary prospectus, dated as of May 27, 2005, included in the Registration Statement before it became effective under the Securities Act and any prospectus filed with the Commission by the Company with the consent of the Underwriters pursuant to Rule 424(a) under the Securities Act is hereinafter called the Preliminary Prospectus. All references in this Agreement to the Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus or the Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (EDGAR).
The Company, ev3 LLC, a Delaware limited liability company (ev3 LLC), and the Selling Stockholder hereby confirm their respective agreements with the Underwriters as follows: