Underwriting Agreement

ev3 Inc.
11,765,000 Shares



Common Stock



UNDERWRITING AGREEMENT



dated June 16, 2005



Piper Jaffray & Co.

Banc of America Securities LLC










UNDERWRITING AGREEMENT





June 16, 2005



PIPER JAFFRAY & CO.



BANC OF AMERICA SECURITIES LLC

As Representatives of the several Underwriters



c/o PIPER JAFFRAY & CO.

800 Nicollet Mall

Minneapolis, MN 55402



Ladies and Gentlemen:



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:



Section 1. Representations and Warranties.



A. Representations and Warranties of the Company and ev3 LLC. The Company and ev3 LLC hereby jointly and severally represent, warrant and covenant to each Underwriter as follows:



(a) Compliance with Registration Requirements. The Registration Statement has been declared effective by the Commission under the Securities Act and any Rule 462(b) Registration Statement is effective. The Company has complied with all requests of the Commission for additional or supplemental information. No stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company, are contemplated or threatened by the Commission. The Preliminary Prospectus when filed with the Commission complied, and the Prospectus when filed with the Commission will comply, in all material respects with the Securities Act and, if filed by electronic transmission pursuant to EDGAR (except as may be permitted by Regulation S-T under the Securities Act), was or will be, as the case may be, identical to the copy thereof delivered to the Underwriters for use in connection with the offer and sale of the Common Shares. The Registration Statement complies, and any Rule 462(b)



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Registration Statement and any post-effective amendments or supplements to the Registration Statement, when they become effective and at all times during the Prospectus Delivery Period, will comply, in all material respects with the requirements of the Securities Act. The Registration Statement did not contain, and any Rule 462(b) Registration Statement or any post-effective amendments thereto will not contain, as of their respective effective dates and at all times during the Prospectus Delivery Period, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, except in each case if the Company notifies the Representatives in writing of an event or condition as a result of which it is necessary to amend or supplement the Registration Statement in order to make the statements therein not misleading and the Company so amends or supplements the Registration Statement in compliance with the terms of this Agreement. The Prospectus (including any Prospectus wrapper), as amended or supplemented, as of its date and at all times during the Prospectus Delivery Period (as defined below), did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except in each case if the Company notifies the Representatives in writing of an event or condition as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and the Company so amends or supplements the Prospectus in compliance with the terms of this Agreement. The representations and warranties set forth in the three immediately preceding sentences do not apply to statements in or omissions from the Registration Statement, any Rule 462(b) Registration Statement, or any post-effective amendment thereto, or the Prospectus (including any Prospectus wrapper), or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by the Representatives expressly for use therein. There are no contracts or other documents of ev3 LLC, the Company or their respective subsidiaries required to be described in the Prospectus or to be filed as exhibits to the Registration Statement which have not been described or filed as required.



(b) Offering Materials Furnished to Underwriters. The Company has delivered to the Representatives two complete copies of the manually signed Registration Statement and of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and copies of the Preliminary Prospectus and the Prospectus, as amended or supplemented, in such quantities and at such places as the Representatives have reasonably requested for each of the Underwriters.



(c) Distribution of Offering Material By the Company. The Company has not distributed and will not distribute, prior to the later of the Second Closing Date



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(as defined below) and the completion of the Prospectus Delivery Period (as defined below), any offering material in connection with the offering and sale of the Common Shares other than the Preliminary Prospectus, the Prospectus or the Registration Statement.



(d) The Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement of, ev3 LLC and the Company, enforceable against each of ev3 LLC and the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights and remedies of creditors generally and by the effect of general principles of equity and except that any rights to indemnity and contribution pursuant to Sections 8 and 9 hereof may be limited by federal and state securities laws and public policy considerations.



(e) Authorization of the Common Shares. The Common Shares to be purchased by the Underwriters from the Company have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered by the Company against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable.



(f) No Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, other than the Selling Stockholder with respect to the Optional Common Shares included in the Registration Statement, except for such rights as have been duly waived or have been described in the Prospectus.



(g) No Material Adverse Change. Except as otherwise disclosed in the Prospectus, subsequent to the respective dates as of which information is given in the Prospectus: (i) there has been no material adverse change, or any development that could reasonably be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings, business, operations or prospects, whether or not arising from transactions in the ordinary course of business, of ev3 LLC, the Company and their respective subsidiaries, considered as one entity (any such change is called a "Material Adverse Change"); (ii) ev3 LLC, the Company and their respective subsidiaries, considered as one entity, have not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business nor entered into any material transaction or agreement not in the ordinary course of business; and (iii) there has been no dividend or distribution of any kind declared, paid or made by ev3 LLC or the Company or, except for dividends paid to ev3 LLC, the Company or any of their respective



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subsidiaries, any of their respective subsidiaries on any class of their respective capital stock or repurchase or redemption by the Company or any of its subsidiaries of any class of their respective capital stock.



(h) Independent Accountants. PricewaterhouseCoopers LLP and Ernst & Young LLP, which have expressed their respective opinions with respect to certain portions (as indicated therein) of the combined consolidated financial statements (which term as used in this Agreement includes the related notes thereto) filed with the Commission as a part of the Registration Statement and included in the Prospectus, are each an independent registered public accounting firm as required by the Securities Act.



(i) Preparation of the Financial Statements. The combined consolidated financial statements filed with the Commission as a part of the Registration Statement and included in the Prospectus present fairly the consolidated financial position of ev3 LLC and its subsidiaries as of and at the dates indicated and the results of their operations and cash flows for the periods specified. The financial statement schedule included in the Registration Statement presents fairly the information required to be stated therein. Such combined consolidated financial statements and financial statement schedule have been prepared in conformity with generally accepted accounting principles as applied in the United States applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto. No other financial statements or supporting schedules are required to be included in the Registration Statement. The combined consolidated financial data set forth in the Prospectus under the captions " Prospectus Summary - Summary Combined Consolidated Financial Data," "Selected Combined Consolidated Financial Data" and "Capitalization" fairly present the information set forth therein on a basis consistent with that of the combined consolidated financial statements contained in the Registration Statement.



(j) Incorporation and Good Standing of ev3 LLC, the Company and their Subsidiaries. Each of ev3 LLC, the Company and each of their respective subsidiaries has been duly formed, incorporated or organized and is validly existing as a limited liability company, corporation or other entity in good standing under the laws of the jurisdiction of its formation, incorporation or organization and has limited liability company, corporate or other power and authority to own, lease and operate its properties and to conduct its business as it is currently conducted and as described in the Prospectus and, in the case of ev3 LLC and the Company, to enter into and perform their obligations under this Agreement. Each of ev3 LLC, the Company and each of their respective subsidiaries is duly qualified as a foreign limited liability company or corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to



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so qualify or to be in good standing would not, individually or in the aggregate, result in a Material Adverse Change. All of the issued and outstanding capital stock of each subsidiary of ev3 LLC and the Company has been duly authorized and validly issued, is fully paid and nonassessable and is owned by ev3 LLC or the Company, directly or through their respective subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim, except for such security interests, mortgages, pledges, liens, encumbrances or claims (1) which would not individually or in the aggregate result in a Material Adverse Change or (2) pursuant to that certain Loan and Security Agreement, dated as of May 6, 2005, between Silicon Valley Bank and Micro Therapeutics, Inc., a Delaware corporation ("MTI"); provided , however , with respect to MTI, either ev3 LLC or the Company (i) directly owns 9,704,819 shares of the common stock of MTI and (ii) indirectly owns 24,336,759 shares of the common stock of MTI. Neither ev3 LLC nor the Company owns or controls, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21.1 to the Registration Statement, except for any such corporation, association or other entity which is not a "significant subsidiary" as defined by Rule 1-02 of Regulation S-X under the Securities Act.



(k) Capitalization and Other Capital Stock Matters. (i) The authorized, issued and outstanding membership units of ev3 LLC is as set forth in the Prospectus under the column "Actual ev3 LLC" under the caption "Capitalization" (ii) the authorized, issued and outstanding Common Stock of the Company after giving effect to the merger of ev3 LLC with and into the Company (the "Merger") is as set forth in the Prospectus under the column "Pro Forma for MTI Share Contribution and Merger ev3 Inc." under the caption " Capitalization" (iii) the authorized, issued and outstanding Common Stock of the Company after giving effect to the "reorganization transactions" (as defined in the Prospectus) and the reverse stock split (as set forth in the Prospectus) is as set forth in the Prospectus under the column "Pro Forma for Reorganization Transactions and Reverse Stock Split ev3 Inc." under the caption "Capitalization" and (iv) the authorized, issued and outstanding Common Stock of the Company after giving effect to the "reorganization transactions" (as defined in the Prospectus), the reverse stock split (as set forth in the Prospectus) and the sale of the Firm Common Shares is as set forth in the Prospectus under the column "Pro Forma As Adjusted ev3 Inc." under the caption " Capitalization", in each case, other than for subsequent issuances, if any, pursuant to employee benefit plans described in the Prospectus or upon exercise of outstanding convertible securities, options or warrants described in the Prospectus. The Common Stock (including the Common Shares) conforms in all material respects to the description thereof contained in the Prospectus. All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance with federal and state securities laws as of the First Closing Date and as of the



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Second Closing Date, if applicable. As of the First Closing Date and as of the Second Closing Date, if applicable, all of the issued and outstanding shares of Common Stock owned by the Selling Stockholder will have been duly authorized and validly issued, and will be fully paid and nonassessable and have been issued in compliance with federal and state securities laws. None of the outstanding membership units of ev3 LLC or shares of Common Stock were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of ev3 LLC or the Company which were not properly waived. Except as set forth in that certain Option, Contribution and Exchange Agreement, dated as of August 29, 2003, by and among ev3 LLC and certain of its members party thereto and in the Holders Agreement, dated as of August 29, 2003, among the investors named therein and the Company, there are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or any of its subsidiaries other than those described in the Prospectus or issued or granted after the date thereof. The description of ev3 LLC92s and the Company92s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder, set forth in the Prospectus accurately and fairly presents in all material respects the information required to be shown with respect to such plans, arrangements, options and rights.



(l) Quotation. The Common Shares have been approved for inclusion on the NASDAQ National Market, subject only to official notice of issuance.



(m) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required. Neither ev3 LLC, the Company nor any of their respective subsidiaries is in violation of its charter, by-laws or other organizational documents or is in default (or, with the giving of notice or lapse of time, would be in default) (" Default") under any indenture, mortgage, loan or credit agreement, note, contract, lease or other instrument to which ev3 LLC, the Company or any of their respective subsidiaries is a party or by which any of them may be bound, or to which any of the property or assets of ev3 LLC, the Company or any of their respective subsidiaries is subject (each, an "Existing Instrument"), except for such Defaults as would not, individually or in the aggregate, result in a Material Adverse Change. Each of ev3 LLC92s and the Company92s execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby and by the Prospectus (i) have been duly authorized by all necessary corporate action and will not result in any violation of the provisions of, with respect to ev3 LLC, its operating agreement or other organizational documents, and with respect to the Company, its charter or by-laws, or the organizational documents of any of their subsidiaries, (ii) will not conflict with or constitute a breach of, or Default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of ev3 LLC, the Company or any of their respective subsidiaries pursuant to, or require



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the consent of any other party to, any Existing Instrument, except for such consents which have been obtained and for such conflicts, breaches, Defaults, liens, charges or encumbrances as would not, individually or in the aggregate, result in a Material Adverse Change and (iii) will not result in any violation of any law, administrative regulation or administrative or court decree applicable to ev3 LLC, the Company or any of their respective subsidiaries except for such violations as would not, individually or in the aggregate, result in a Material Adverse Change. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency, is required for ev3 LLC92s or the Company92s execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby and by the Prospectus, except (i) such as have been obtained or made by ev3 LLC and the Company and are in full force and effect under the Securities Act and applicable state securities or blue sky laws and (ii) for the filing of the Certificate of Merger contemplated by the Agreement and Plan of Merger, dated as of April 4, 2005 (filed as Exhibit 2.1 to the Registration Statement), which Certificate of Merger will be filed on or before the First Closing Date.



(n) No Material Actions or Proceedings. Except as otherwise disclosed in the Prospectus, there are no legal or governmental actions, suits or proceedings (including, without limitation, any actions, suits or proceedings by the Food and Drug Administration (the "FDA")) pending or, to the best of ev3 LLC92s and the Company92s knowledge, threatened (i) against ev3 LLC, the Company or any of their respective subsidiaries, (ii) which has as the subject thereof any officer or director of, or property owned or leased by, ev3 LLC or the Company or any of their respective subsidiaries or (iii) relating to environmental or discrimination matters, where in any such case (A) there is a reasonable possibility that such action, suit or proceeding would be determined adversely to ev3 LLC, the Company or such subsidiary and (B) any such action, suit or proceeding, if so determined adversely, would reasonably be expected to result in a Material Adverse Change or materially and adversely affect the Company92s ability to consummate the transactions contemplated by this Agreement. No labor dispute with the employees of ev3 LLC, the Company or any of any of their respective subsidiaries exists or, to the best of ev3 LLC92s and the Company92s knowledge, is threatened or imminent which would, individually or in the aggregate, be reasonably expected to result in a Material Adverse Change.



(o) Intellectual Property Rights. Each of ev3 LLC, the Company and their respective subsidiaries own or possess sufficient trademarks, trade names, patent rights, copyrights, domain names, licenses, approvals, trade secrets and other similar rights (collectively, " Intellectual Property Rights") reasonably necessary to conduct their businesses as now conducted, except as such failure to own, possess or acquire such rights would not have a Material Adverse Change and the expected expiration of any of such Intellectual Property Rights would not result in a Material Adverse



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Change. Except as disclosed in the Prospectus, none of ev3 LLC, the Company or any of their respective subsidiaries has received any notice of infringement or conflict with asserted Intellectual Property Rights of others, which infringement or conflict, if the subject of an unfavorable decision, would result in a Material Adverse Change. None of ev3 LLC, the Company or any of their respective subsidiaries is a party to or bound by any options, licenses or agreements with respect to the Intellectual Property Rights of any other person or entity that are required to be described in the Prospectus and are not described in all material respects. None of the Intellectual Property Rights owned by ev3 LLC, the Company or any of their respective subsidiaries have been obtained or are being used by ev3 LLC, the Company or any of their respective subsidiaries in violation of any contractual obligation binding on ev3 LLC, the Company, any of their respective subsidiaries or, to ev3 LLC92s or the Company92s knowledge, any of their respective officers, directors or employees or otherwise in violation of the rights of any persons, except where such violations would not, individually or in the aggregate, result in a Material Adverse Change.



(p) All Necessary Permits, etc. Each of ev3 LLC, the Company and each of their respective subsidiaries possess such valid and current certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their respective businesses, except where the failure to so possess would not, individually or in the aggregate, result in a Material Adverse Change and none of ev3 LLC, the Company or any of their respective subsidiaries has received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Change.



(q) Title to Properties. ev3 LLC, the Company and each of their respective subsidiaries has good and marketable title to all the properties (whether real or personal) and assets reflected as owned in the financial statements referred to in Section 1(A)(i) above, in each case free and clear of any security interests, mortgages, liens, encumbrance ...