Exhibit 10.24
ev3 INC.
EMPLOYEE STOCK PURCHASE PLAN
Section 1.
Purpose .
This Employee Stock Purchase Plan (the “Plan”) is
intended to advance the interests of ev3 Inc., a Delaware
corporation (“the Company”) and its stockholders by
providing Employees of the Company and its Designated Subsidiaries
with opportunities to acquire shares of the Company’s Common
Stock on favorable terms through payroll deductions. The Plan
is intended to qualify as an “employee stock purchase
plan” under Section 423 of the Internal Revenue Code of
1986, as amended (the “Code”), and will be construed so
as to extend and limit participation in a manner consistent with
the requirements of Section 423 of the Code.
Section 2.
Definitions .
(a)
“Board” means the Board of Directors of the
Company.
(b)
“Common Stock” means the common stock, par value $0.01
per share, of the Company, or the number and kind of shares of
stock or other securities into which such common stock may be
changed in accordance with Section 13 of the Plan.
(c)
“Committee” means the entity administering the Plan, as
provided in Section 3 below.
(d)
“Compensation” means regular straight-time earnings and
commissions that are included in regular compensation, including
amounts that would have constituted compensation but for a
Participant’s election to defer or reduce compensation
pursuant to any deferred compensation, cafeteria, capital
accumulation or any other similar plan of the Company and excluding
all other amounts such as amounts attributable to overtime, shift
premium, incentive compensation and bonuses (except to the extent
that the inclusion of any such item is specifically directed by the
Committee), determined in a manner consistent with the requirements
of Section 423 of the Code.
(e)
“Designated Subsidiary” means a Subsidiary that has
been designated by the Board from time to time, in its sole
discretion, as eligible to participate in the Plan.
(f)
“Employee” means any person, including an officer, who
is employed by the Company or one of its Designated Subsidiaries,
excluding any such person whose customary employment with the
Company or a Designated Subsidiary is for 20 hours or less per
week.
(g)
“Exchange Act” means the Securities Exchange Act of
1934, as amended.
(h)
“Fair Market Value” means, with respect to the Common
Stock, as of any date: (i) the closing sale price of the
Common Stock as of such date at the end of the regular trading
session, as reported on the Nasdaq National Market System or on any
national exchange (or, if no shares were traded on such date, as of
the next preceding date on which there was such a trade); or
(ii) if the Common Stock is not so listed, admitted to
unlisted trading privileges, or reported on any national exchange
or on the Nasdaq National Market System, the closing sale price as
of such date at the end of the regular trading session, as reported
by the Nasdaq SmallCap Market, Over-the-Counter Bulletin Board, the
Bulletin Board Exchange (BBX) or the Pink Sheets, LLC, or other
comparable service (or, if no shares were traded or quoted on such
date, as of the next preceding date on which there was such a trade
or quote); or (iii) if the Common Stock is not so
listed or reported, such price as
the Committee determines in its sole discretion in a manner
acceptable under Section 423 of the Code.
(i)
“Offering” means any of the offerings to Participants
of options to purchase Common Stock under the Plan, as described in
Section 5 below.
(j)
“Offering Date” means the first day of the period of an
Offering under the Plan, as described in Section 5
below.
(k)
“Option Price” is defined in Section 8
below.
(l)
“Participant” means an eligible Employee who elects to
participate in the Plan pursuant to Section 6
below.
(m)
“Securities Act” means the Securities Act of 1933, as
amended.
(n)
“Subsidiary” means any subsidiary corporation of the
Company within the meaning of Section 424(f) of the
Code.
(o)
“Purchase Date” means the last day of the period of an
Offering under the Plan, as described in Section 5
below.
Section 3.
Administration . The Plan will be
administered by the Board or by a committee of the Board. So
long as the Company has a class of its equity securities registered
under Section 12 of the Exchange Act, the Plan will be
administered by a committee (the “Committee”)
consisting solely of not less than two members of the Board who are
“non-employee directors” within the meaning of
Rule 16b-3 under the Exchange Act. Such a committee, if
established, will act by majority approval of the members (but may
also take action with the written consent of all the members of
such committee), and a majority of the members of such a committee
will constitute a quorum. As used in the Plan,
“Committee” will refer to the Board or to such a
committee, if established. To the extent consistent with
corporate law, the Committee may delegate to any officers of the
Company the duties, power and authority of the Committee under the
Plan pursuant to such conditions or limitations as the Committee
may establish; provided, however, that only the Committee may
exercise such duties, power and authority with respect to
Participants who are subject to Section 16 of the Exchange
Act. The Committee may exercise its duties, power and
authority under the Plan in its sole discretion without the consent
of any Participant or other party, unless the Plan specifically
provides otherwise. Each determination, interpretation or
other action made or taken by the Committee pursuant to the
provisions of the Plan will be final, conclusive and binding for
all purposes and on all persons, including, without limitation, the
Company, the stockholders of the Company, the Participants and
their respective successors-in-interest. No member of the
Committee shall be liable for any action or determination made in
good faith with respect to the Plan or any option granted under the
Plan.
Section 4.
Eligibility .
(a)
With respect to an Offering, any Employee employed by the Company
or a Designated Subsidiary on the Offering Date shall be eligible
to participate in the Plan, subject to the limitations imposed by
Section 423(b) of the Code.
(b)
Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan if:
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(i)
immediately after the grant, such Employee (or any other person
whose stock ownership would be attributed to such Employee pursuant
to Section 424(d) of the Code) would own shares of Common
Stock and/or hold outstanding options to purchase shares of Common
Stock possessing 5% or more of the total combined voting power or
value of all classes of shares of the Company or of any Subsidiary;
or
(ii)
the amount of payroll deductions that the Employee has elected to
have withheld under such option (pursuant to Section 7 below)
would permit the Employee to purchase shares of Common Stock under
all “employee stock purchase plans” (within the meaning
of Section 423 of the Code) of the Company and its
Subsidiaries to accrue (i.e., become exercisable) at a rate that
exceeds $25,000 of the Fair Market Value of such shares of Common
Stock (determined at the time such option is granted) for each
calendar year in which such option is outstanding at any
time.
Section 5.
Offerings .
Options to purchase shares of Common Stock shall be offered to
Participants under the Plan through a continuous series of
Offerings, each continuing for six months and each of which shall
commence on January 1 and July 1 of each year, as the
case may be, and shall terminate on June 30 and
December 31 of such year, as the case may be; provided,
however, that the first Offering under the Plan shall have an
Offering Date and Purchase Date as determined by the Committee in
its sole discretion. Offerings under the Plan shall continue
until either (a) the Committee decides, in its sole
discretion, that no further Offerings shall be made because the
Common Stock remaining available under the Plan is insufficient to
make an Offering to all eligible Employees, or (b) the Plan is
terminated under Section 17 below. Notwithstanding the
foregoing, and without limiting the authority of the Committee
under Section 3, 13(b) and 17 of the Plan, the Committee,
in its sole discretion, may (a) accelerate the Purchase Date
of the then current Offering and provide for the exercise of
options thereunder by Participants in accordance with
Section 9 of the Plan, or (b) accelerate the Purchase
Date of the then current Offering and provide that all payroll
deductions credited to the accounts of Participants will be paid to
Participants as soon as practicable after such Purchase Date and
that all options for such Offering will automatically be canceled
and will no longer be exercisable, if such change is announced at
least five (5) days prior to the newly scheduled Purchase
Date.
Section 6.
Participation .
(a)
An eligible Employee may become a Participant in the Plan by
completing a subscription agreement authorizing payroll deductions
on the form provided by the Company (the “Participation
Form”) and filing the Participation Form with the
Company’s Human Resources Department or the stock brokerage
or other financial services firm designated by the Company
(“Designated Broker”) not less than 15 days before the
Offering Date of the first Offering in which the Participant wishes
to participate.
(b)
Except as provided in Section 7(a) below, payroll
deductions for a Participant shall begin with the first payroll
following the applicable Offering Date, and shall continue until
the termination date of the Plan, subject to earlier termination by
the Participant as provided in Section 11 below or increases
or decreases by the Participant in the amount of payroll deductions
as provided in Section 7(c) below.
Section 7.
Payroll Deductions.
(a)
By completing and filing a Participation Form, a Participant shall
elect to have payroll deductions made from the Participant’s
total Compensation (in whole percentages from 1% to a maximum of
10% of the Participant’s total Compensation) on each payday
during the
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time he or she is a Participant in
the Plan in such amount as he or she shall designate on the
Participation Form; provided, however, that no Participant’s
payroll deductions shall be less than $10.00 per pay
period.
(b)
All payroll deductions authorized by a Participant shall be
credited to an account established under the Plan for the
Participant. The monies represented by such account shall be
held as part of the Company’s general assets, usable for any
corporate purpose, and the Company shall not be obligated to
segregate such monies. A Participant may not make any
separate cash payment or contribution to such account.
(c)
No increases or decreases of the amount of payroll deductions for a
Participant may be made during an Offering. A Participant may
increase or decrease the amount of the Participant’s payroll
deductions under the Plan for subsequent Offerings by completing an
amended Participation Form and filing it wit
