FORM OF VOTING AGREEMENT
This Voting Agreement (this
“Agreement”), is made and entered into as of
July 21, 2007, by and between ev3 Inc., a Delaware corporation
(“ Parent ”), and the undersigned
stockholder (“ Stockholder ”) of
FoxHollow Technologies, Inc., a Delaware corporation (the “
Company ”).
Recitals
A. Concurrently with the
execution of this Agreement, Parent, Foreigner Merger Sub, Inc., a
Delaware corporation and a wholly owned first-tier subsidiary of
Parent (“ Merger Sub ”), and the Company
are entering into an Agreement and Plan of Merger (as may be
amended from time to time, the “ Merger
Agreement ”), pursuant to which Merger Sub will be
merged with and into the Company (the “ Merger
”). Capitalized terms used but not defined herein shall have
the meanings given to them in the Merger Agreement.
B. Stockholder is the record and
beneficial owner of such number of outstanding shares of Company
Common Stock as is indicated on the signature pages to this
Agreement.
C. As a material inducement to
enter into the Merger Agreement, Parent desires Stockholder to
agree, and Stockholder is willing to agree, to vote the Shares (as
defined in Section 1.1 below), and such other shares of
capital stock of the Company over which Stockholder has voting
power, so as to facilitate consummation of the Merger.
In consideration of the foregoing and
the representations, warranties, covenants and agreements set forth
in this Agreement, the parties agree as follows:
1.1 Shares . The term “
Shares ” shall mean all issued and outstanding
shares of Company Common Stock owned of record and beneficially
owned by Stockholder or over which Stockholder exercises sole
voting power, in each case, as of the date of this Agreement.
Stockholder agrees that any shares of capital stock of the Company
that Stockholder purchases or with respect to which Stockholder
otherwise acquires beneficial ownership or over which Stockholder
exercises sole voting power after the date of this Agreement and
prior to the termination of this Agreement pursuant to
Section 4 below shall be subject to the terms and conditions
of this Agreement to the same extent as if they constituted Shares
as of the date hereof.
1.2 Agreement to Vote Shares .
Stockholder hereby covenants and agrees that during the period
commencing on the date hereof and continuing until this Agreement
terminates pursuant to Section 4 hereof, at any meeting
(whether annual or special and whether or not an adjourned or
postponed meeting) of the stockholders of the Company, however
called, and in any action by written consent of the stockholders of
the Company, Stockholder shall appear at the meeting or otherwise
cause any and all Shares to be counted as present thereat for
purposes of establishing a quorum and vote (or cause to be voted)
any and all Shares: (i) in favor of the Company Stockholder
Proposal (which includes approval of the Merger and the Merger
Agreement); and (ii) against any of the following (or any
agreement to enter into, effect, facilitate or support any of the
following): (A) any Acquisition Proposal; (B) any
merger
agreement or merger (other than the Merger Agreement and the
Merger), consolidation, combination, sale of substantial assets,
reorganization, recapitalization, dissolution, liquidation or
winding up of or by the Company; or (C) any amendment of the
Company’s Certificate of Incorporation or Bylaws or any other
proposal or transaction involving the Company, the purpose of which
amendment or other proposal or transaction is to delay, prevent or
nullify the Merger or the transaction contemplated by the Merger
Agreement or change in any manner the voting rights of any capital
stock of the Company (collectively, “ Frustrating
Transactions ”). Stockholder further agrees not to
enter into any agreement or understanding with any person or entity
the effect of which would be inconsistent with or violative of any
provision contained in this Section 1.2. Any vote by the
Stockholder that is not in accordance with this Section 1.2
shall be considered null and void, and the provisions of
Section 1.3 shall be deemed to take immediate effect.
Notwithstanding anything to the contrary contained herein, nothing
in this Agreement shall be construed to limit or restrict
Stockholder from acting in his or her capacity as a director of the
Company or voting in Stockholder’s sole discretion on any
matter other than those matters referred to in the first sentence
of this Section 1.2.
1.3 Irrevocable Proxy . The
Stockholder hereby irrevocably grants to, and appoints, Parent and
any designee of Parent, and each of them individually, as the
Stockholder’s proxy and attorney-in-fact (with full power of
substitution and resubstitution), for and in the name, place and
stead of the Stockholder, to vote the Shares of the Stockholder, or
grant a consent or approval in respect of the Shares of the
Stockholder in a manner consistent with Section 1.2. The
Stockholder understands and acknowledges that Parent is entering
into the Merger Agreement in reliance upon the Stockholder’s
execution and delivery of this Agreement. The Stockholder hereby
affirms that the irrevocable proxy set forth in this
Section 1.3 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of the Stockholder under this
Agreement. The Stockholder agrees that this proxy shall be
irrevocable during the term of this Agreement and is coupled with
an interest sufficient at law to support an irrevocable proxy and
given to Parent as an inducement to enter into the Merger Agreement
and, to the extent permitted under applicable law, shall be valid
and binding on any person to whom a Stockholder may transfer any of
his, her or its Shares in breach of this Agreement. The
Stockholder hereby ratifies and confirms all that such irrevocable
proxy may lawfully do or cause to be done by virtue hereof. All
authority herein conferred or agreed to be conferred shall survive
the death or incapacity of the Stockholder and any obligation of
the Stockholder under this Agreement shall be binding upon the
heirs, personal representatives, successors and assigns of the
Stockholder. Notwithstanding anything to the contrary herein, the
irrevocable proxy granted hereunder shall automatically terminate
upon the termination of this Agreement pursuant to Section 4
hereof.
1.4 Adjustments Upon Changes in
Capitalization . In the event of any change in the number of
issued and outstanding shares of Company Common Stock by reason of
any stock split, reverse split, stock dividend (including any
dividend or distribution of securities convertible into Company
Common Stock), combination, reorganization, recapitalization or
other like change, conversion or exchange of shares, or any other
change in the corporate or capital structure of the Company, the
term “ Shares ” shall be deemed to refer
to and include the Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
2
2.1 Transfers and Other
Restrictions . Stockholder represents, covenants and agrees
that, except as contemplated by this Agreement:
(i) Stockholder shall not, directly or indirectly, during the
period commencing on the date hereof and continuing until this
Agreement terminates pursuant to Section 4 hereof,
(A) offer for sale or agree to sell, transfer, tender, assign,
pledge, hypothecate or otherwise dispose of or enter into any
contract, option or other arrangement or understanding with respect
to, or consent to, the offer for sale, sale, transfer, tender,
pledge, hypothecation, encumbrance, assignment or other disposition
of, or create any Lien of any nature whatsoever with respect to,
any or all of the Shares or any interest therein (each such
transaction, a “ Transfer ”);
provided, however , that nothing in this Section 2.1
shall prevent or prohibit Stockholder from a Transfer or Transfers
of Shares pursuant to Rule 144 of the Securities Act of 1933,
as amended, during the period commencing on the date hereof and
continuing until this Agreement terminates pursuant to
Section 4 hereof; provided further , that with respect
to Shares held by John B. Simpson and his affiliates (“
Simpson ”), nothing in this Section 2.1
shall prevent or prohibit Simpson from a Transfer or Transfers of
Shares pursuant to the 10b5-1 trading plans (the “
Plans ”) in effect on the date hereof and
continuing until this Agreement terminates pursuant to
Section 4 hereof, provided that any such Transfer is made
pursuant to Rule 144 and that Simpson does not modify or amend
the Plans as a part of a plan or scheme to evade the prohibitions
set forth in this Agreement; or (B) take any action that could
make any of its r
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