Exhibit 10.5
EV3
INC.
ROBERT
J. PALMISANO INDUCEMENT GRANT
NON-INCENTIVE STOCK OPTION
OPTION
CERTIFICATE
ev3
Inc., a Delaware corporation (the “Company”) hereby
grants an Option to Robert J. Palmisano, who shall be referred to
as “Optionee”, to purchase from the Company seven
hundred fifty-four thousand (754,000) shares of Stock at an Option
Price per share equal to $8.64, which grant shall be subject to all
of the terms and conditions set forth in this Option Certificate.
This grant has been made as of April 6, 2008, which shall be
referred to as the “Grant Date”. The Option Price of
this Option is the closing price of the Stock on the NASDAQ Stock
Market on April 4, 2008, which is the last business day
immediately preceding the Grant Date. This Option is not intended
to satisfy the requirements of § 422 of the Code and thus
shall not be an “incentive stock option.” This Option
is being granted as an “employee inducement award”
within the meaning of Rule 4350(i)(1)A)(iv) of the NASDAQ Stock
Market Marketplace Rules.
TERMS
AND CONDITIONS
§ 1. Definitions . This
Option grant is subject to all the terms and conditions set forth
in this Option Certificate. Certain capitalized terms used in this
Option Certificate are defined as follows:
Affiliate means any
organization (other than a Subsidiary) that would be treated as
under common control with the Company under § 414(c) of the
Code if “50 percent” were substituted for
“80 percent” in the income tax regulations under
§ 414(c) of the Code.
Board means the Board of
Directors of the Company.
Change in Control means a
change in control of the Company occurring after the Grant Date of
a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A
(or in response to any similar item on any similar schedule or
form) promulgated under the Exchange Act, whether or not the
Company is then subject to such reporting requirement;
provided , however , that, without limitation, a
Change in Control shall include: (i) the acquisition (other
than from the Company) after the Grant Date by any person, entity
or “group” within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act (excluding, for this purpose, the
Company or its subsidiaries, any employee benefits plan of the
Company or its subsidiaries which acquires beneficial ownership of
voting securities of the Company, any qualified institutional
investor who meets the requirements of Rule 13d-1(b)(1)
promulgated under the Exchange Act, Warburg Pincus LLC and its
affiliates, and The Vertical Group, L.P. and its affiliates) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either the
then-outstanding shares of common stock or the combined voting
power of the Company’s then-outstanding capital stock
entitled to vote generally in the election of directors;
(ii) individuals who, as of the date hereof, constitute the
Board (the “ Incumbent Board ”) ceasing for any
reason to constitute at least a majority of the Board, provided
that any person becoming a director subsequent to the date hereof
whose election, or nomination for election by the Company’s
stockholders was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (other than an
election or nomination of an individual whose initial assumption of
office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company)
shall be, for purposes of this Agreement, considered as though such
person were a member of the Incumbent Board; or (iii) approval
by the stockholders of the Company of (A) reorganization,
merger, or consolidation, in each case, with respect to which
persons who were the stockholders of the Company immediately prior
to such reorganization, merger, or consolidation do not,
immediately thereafter, own more than 50% of the combined voting
power entitled to vote generally in the election of directors of
the reorganized, merged, consolidated or other surviving
corporation’s then-outstanding voting securities, (B) a
liquidation or dissolution of the Company, or (C) the sale of
all or substantially all of the assets of the Company.
Code means the Internal
Revenue Code of 1986, as amended.
Committee means a committee
of the Board which shall have at least 2 members, each of whom
shall be appointed by and shall serve at the pleasure of the Board
and, if at any time the Company desires to exempt issuances within
the meaning of Section 162(m) of the Code, each of whom shall be an
“outside director” within the meaning of
Section 162(m)(4)(C) of the Code.
Exchange Act means the
Securities Exchange Act of 1934, as amended.
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Family Member has the meaning
given such term in Form S-8 under the 1933 Act.
Stock means the common stock
of the Company.
Subsidiary means a
corporation which is a subsidiary corporation (within the meaning
of § 424(f) of the Code) of the Company.
1933 Act means the Securities
Act of 1933, as amended.
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§ 2. |
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Vesting and Option Expiration . |
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(a) |
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General Rule . Subject to § 2(b) and § 2(c),
Optionee’s right under this Option Certificate to exercise
this Option shall vest with respect to: (1) 25% of the shares
of Stock which may be purchased under this Option Certificate on
April 6, 2009, such date being approximately twelve (12)
months from the Grant Date, provided he remains continuously
employed by the Company or continues to provide services to the
Company through such date, and (2) with respect to the
remaining 75% of such shares of Stock, in equal amounts on the
sixth day of each of the next thirty-six (36) months
thereafter, beginning on May 6, 2009 provided he remains
continuously employed by the Company or continues to provide
services to the Company through each such date. |
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(b) |
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Option Expiration Rules . |
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(1) |
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Non-Vested Shares . If Optionee’s employment or
service with the Company terminates for any reason whatsoever,
including death, Disability or retirement, while there are any
non-vested shares of Stock subject to this Option under §
2(a), this Option immediately upon such termination of employment
or service shall expire and shall have no further force or effect
and be null and void with respect to such non-vested shares of
Stock. |
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(2) |
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Vested Shares . Optionee’s right to exercise all
or any part of this Option which has vested under § 2(a) shall
expire no later than the tenth anniversary of the Grant Date.
However, if Optionee’s employment or service relationship
with the Company terminates before the tenth anniversary of the
Grant Date, Optionee’s right to exercise this Option
which |
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