Execution Copy
Voting
Agreement
This Voting Agreement (this
“Agreement”), is made and entered into as of
July 21, 2007, by and between ev3 Inc., a Delaware corporation
(“ Parent ”), and the undersigned
stockholder (“ Stockholder ”) of
FoxHollow Technologies, Inc., a Delaware corporation (the “
Company ”).
Recitals
A. Concurrently with the
execution of this Agreement, Parent, Foreigner Merger Sub, Inc., a
Delaware corporation and a wholly owned first-tier subsidiary of
Parent (“ Merger Sub ”), and the Company
are entering into an Agreement and Plan of Merger (as may be
amended from time to time, the “ Merger
Agreement ”), pursuant to which Merger Sub will be
merged with and into the Company (such Merger, as contemplated by
the Merger Agreement, being referred to as the “
Merger ”). Capitalized terms used but not
defined herein shall have the meanings given to them in Annex A
hereto.
B. Stockholder is the record and
beneficial owner of such number of outstanding shares of Company
Common Stock as is indicated on the signature pages to this
Agreement.
C. Parent desires Stockholder to
agree, and Stockholder is willing to agree, subject to the terms
and conditions hereof, to vote the Shares (as defined in
Section 1.1 below), so as to facilitate consummation of the
Merger.
In consideration of the foregoing and
the representations, warranties, covenants and agreements set forth
in this Agreement, the parties agree as follows:
1.
Voting of Shares .
1.1 Shares . The term “
Shares ” shall mean all issued and outstanding
shares of Company Common Stock owned of record and beneficially
owned by Stockholder or over which Stockholder exercises sole
voting power, in each case, as of the date of this Agreement.
Stockholder agrees that any shares of capital stock of the Company
that Stockholder purchases or with respect to which Stockholder
otherwise acquires beneficial ownership or over which Stockholder
exercises sole voting power after the date of this Agreement and
prior to the termination of this Agreement pursuant to
Section 4 below shall be subject to the terms and conditions
of this Agreement to the same extent as if they constituted Shares
as of the date hereof.
1.2 Agreement to Vote Shares .
Stockholder hereby covenants and agrees that during the period
commencing on the date hereof and continuing until this Agreement
terminates pursuant to Section 4 hereof, at any meeting
(whether annual or special and whether or not an adjourned or
postponed meeting) of the stockholders of the Company, however
called, and in any action by written consent of the stockholders of
the Company, Stockholder shall appear at the meeting or otherwise
cause any and all Shares to be counted as present thereat for
purposes of establishing a quorum and vote (or cause to be voted)
any and all Shares: (i) in favor of the Company Stockholder
Proposal (to the extent it relates solely to the approval of the
Merger and the Merger Agreement); and (ii) against any of the
following (or any agreement to enter into, effect, facilitate or
support any of the following): (A) any Acquisition Proposal;
(B) any merger agreement or merger (other than the Merger
Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by
the Company; or (C) any amendment of the Company’s
Certificate of Incorporation or Bylaws or any other proposal or
transaction involving the Company, the purpose of which amendment
or other proposal or transaction is to delay, prevent or nullify
the Merger or the transaction contemplated by the Merger Agreement
or change in any manner the voting rights of any capital stock of
the Company (collectively, “ Frustrating
Transactions ”). Stockholder further agrees not to
enter into any written or oral agreement with any person or entity
the effect of which would be inconsistent with or violative of any
provision contained in this Section 1.2. Any vote by the
Stockholder that is not in accordance with this Section 1.2
shall be considered null and void. Notwithstanding anything to the
contrary contained herein, nothing in this Agreement shall be
construed to limit or restrict any representative of Stockholder
from acting in his or her capacity as a director of the Company or
voting in Stockholder’s sole discretion on any matter other
than those matters referred to in the first sentence of this
Section 1.2.
1.3 Adjustments Upon Changes in
Capitalization . In the event of any change in the number of
issued and outstanding shares of Company Common Stock by reason of
any stock split, reverse split, stock dividend (including any
dividend or distribution of securities convertible into Company
Common Stock), combination, reorganization, recapitalization or
other like change, conversion or exchange of shares, or any other
change in the corporate or capital structure of the Company, the
term “ Shares ” shall be deemed to refer
to and include the Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
2.
Other Restrictions .
2.1 Transfers and Other
Restrictions . Stockholder represents, covenants and agrees
that, except as contemplated by this Agreement:
(i) Stockholder shall not, directly or indirectly, during the
period commencing on the date hereof and continuing until this
Agreement terminates pursuant to Section 4 hereof,
(A) offer for sale or agree to sell, transfer, tender, assign,
pledge, hypothecate or otherwise dispose of or enter into any
contract, option or other arrangement or understanding with respect
to, or consent to, the offer for sale, sale, transfer, tender,
pledge, hypothecation, encumbrance, assignment or other disposition
of, or create any Lien of any nature whatsoever with respect to,
any or all of the Shares or any interest therein or (B) take
any action that could make any of its representations or warranties
contained herein untrue or incorrect or could have the effect of
preventing or disabling the Stockholder from performing any of its
obligations hereunder; (ii) Stockholder shall not grant any
proxy or power of attorney, or deposit any Shares into a voting
trust or enter into a voting agreement or other arrangement, with
respect to the voting of Shares (each a “ Voting
Proxy ”); and (iii) Stockholder has not granted,
entered into or otherwise created any Voting Proxy which is
currently (or which will hereafter become) effective, and if any
Voting Proxy has been created, such Voting Proxy is hereby
revoked.
2.2 No Press Releases . The
Stockholder shall not, nor shall the Stockholder authorize or
permit any investment banker, attorney or other adviser or
representative of the Stockholder to, issue any press release or
make any other public statement with respect to this Agreement, the
Merger Agreement, the Merger or any related transactions without
the prior written consent of Parent, except as may be required by
Applicable Law.
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2.3 No Appraisal Rights . The
Stockholder hereby waives, and agrees not to exercise or assent to,
any appraisal rights under Section 262 in connection with the
Merger.
3.
Representations and Warranties of Stockholder . Stockholder
represents and warrants to Parent that:
3.1 Authority; Validity .
Stockholder has all requisite capacity, power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement
by Stockholder and the consummation by Stockholder of the
transactions contemplated hereby have been duly and validly
authorized by all necessary action on the part of Stockholder. This
Agreement has been duly executed and delivered by Stockholder and,
assuming the due authorization, execution and delivery of this
Agreement by Parent, this Agreement constitutes the l
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