exv10w4






Exhibit 10.4




FORM B                    



Grant
#:                     




ev3 INC. THIRD AMENDED AND RESTATED

2005 INCENTIVE PLAN

STOCK GRANT CERTIFICATE



This Stock Grant Certificate evidences a Stock Grant made pursuant to the ev3 Inc. Third Amended
and Restated 2005 Incentive Plan (the “Plan”) of [                    ] shares of restricted Stock to
[                    ] , who shall be referred to as “Grantee”. This Stock Grant is granted effective as of
[                    ] , which shall be referred to as the “Grant Date.”




	 	 	 	 	 
	 	ev3 INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



TERMS AND CONDITIONS





     § 1. Plan and Stock Grant Certificate. This Stock Grant is subject to all of the
terms and conditions set forth in this Stock Grant Certificate and in the Plan. If a determination
is made that any term or condition set forth in this Stock Grant Certificate is inconsistent with
the Plan, the Plan shall control. All of the capitalized terms not otherwise defined in this Stock
Grant Certificate shall have the same meaning in this Stock Grant Certificate as in the Plan. A
copy of the Plan will be made available to Grantee upon written request to the corporate Secretary
of the Company, as further described in § 12.



     § 2. Stockholder Status. Grantee shall have the right under this Stock Grant to vote
all of the shares of Stock subject to this Stock Grant until Grantee’s right to such shares is
forfeited. If Grantee forfeits any shares under § 3, Grantee shall at the same time forfeit
Grantee’s right to vote such shares. Any Stock or cash dividends or other distributions of
property made with respect to shares that remain subject to forfeiture under § 3 shall be held by
the Company, and Grantee’s rights to receive such dividends or other property shall be forfeited or
shall be nonforfeitable at the same time the shares of Stock with respect to which the dividends or
other property are attributable are forfeited or become nonforfeitable. Except for the rights to
vote the shares of Stock subject to this Stock Grant which are described in this § 2, Grantee shall
have no rights as a Stockholder with respect to such shares of Stock until Grantee’s interest in
such shares has become nonforfeitable.



 









 





     § 3. Vesting and Forfeiture.




	 	(a)	 	Vesting. Subject to § 3(b) and § 3(c), Grantee’s
interest in the Stock subject to this Stock Grant shall become nonforfeitable
as follows:






	 	(1)	 	Grantee’s interest in [                    ] of the shares
of Stock subject to this Stock Grant shall become nonforfeitable on
November 15, 20___, so long as Grantee continuously provides services to
the Company or its Affiliates (whether as an employee or as a
consultant) through such date;
	 
	 	(2)	 	Grantee’s interest in an additional [                    ]
of the shares of Stock subject to this Stock Grant shall become
nonforfeitable on November 15, 20___, so long as Grantee continuously
provides services to the Company or its Affiliates (whether as an
employee or as a consultant) through such date;
	 
	 	(3)	 	Grantee’s interest in an additional [                    ]
of the shares of Stock subject to this Stock Grant shall become
nonforfeitable on November 15, 20___, so long as Grantee continuously
provides services to the Company or its Affiliates (whether as an
employee or as a consultant) through such date; and
	 
	 	(4)	 	Grantee’s interest in all remaining shares of
Stock subject to this Stock Grant shall become nonforfeitable on
November 15, 20___, so long as Grantee continuously provides services to
the Company or its Affiliates (whether as an employee or as a
consultant) through such date.






	 	(b)	 	Forfeiture. If Grantee’s continuous service
relationship (including service as an employee and as a consultant) with the
Company and its Affiliates terminates for any reason whatsoever before his or
her interest in all of the shares of Stock subject to this Stock Grant have
become nonforfeitable under § 3(a), then he or she shall (except as provided in
§ 17 of the Plan) forfeit all of the shares of Stock subject to this Stock
Grant except those shares in which he or she has (pursuant to § 3(a)) a
nonforfeitable interest on the date Grantee’s service relationship with the
Company and its Affiliates so terminates.
	 
	 	(c)	 	Effect of Actions Constituting Cause or Adverse Action.
If Grantee is determined by the Committee, acting in its sole discretion, to
have taken any action that would constitute Cause or an Adverse Action during
or within one year after the termination of




2









 






	 	 	 	employment or other service with
the Company or a Subsidiary, irrespective of whether such action or the
Committee’s determination occurs before or after termination of Grantee’s
employment or other service with the Company or any Subsidiary and irrespective
of whether or not Grantee was terminated as a result of such Cause or Adverse
Action, (i) all rights of Grantee under this Stock Grant Certificate shall
terminate and be forfeited without notice of any kind, and (ii) the Committee
in its sole discretion shall have the authority to rescind this Stock Grant
and to require Grantee to pay to the Company, within ten (10) days of receipt
from the Company of notice of such rescission, any amount received or the
amount of any gain realized as a result of such rescission (including any
dividends paid or other distributions made with respect to this Stock Grant).
The Company shall be entitled to withhold and deduct from future wages of
Grantee (or from other amounts that may be due and owing to Grantee from the
Company or a Subsidiary) or make other arrangements for the collection of all
amounts necessary to satisfy such payment obligations. This § 3(c) shall not
apply following a Change in Control.





     § 4. Issuance of Shares. The Company shall issue the shares of Stock subject to this
Stock Grant in book entry. The Secretary of the Company shall direct the Company’s transfer agent
not to honor any requests by the Grantee to transfer the shares of Stock subject to this Stock
Grant or to issue a physical stock certificate representing such shares and any distributions made
with respect to such shares until such time as Grantee’s interest in such shares has become
nonforfeitable. As soon as practicable after each date as of which Grantee’s interest in any
shares becomes nonforfeitable under § 3(a), the Company shall direct the Company’s transfer agent
to honor any requests thereafter by the Grantee to transfer the shares in which his or her interest
has become nonforfeitable on such date (together with any distributions made with respect to such
shares that have been held by the Company) or to issue a physical stock certificate representing
such shares. If shares are forfeited under § 3(a) or if this Stock Grant is rescinded under
§ 3(c), the shares (together with any distributions made with respect to the shares that have been
held by the Company) automatically shall revert back to the Company.



     § 5. Nontransferable. No rights granted under this Stock Grant Certificate shall be
transferable by Grantee other than by will or by the laws of descent and distribution.



     § 6. Other Laws. The Company shall have the right to refuse to transfer shares of
Stock subject to this Stock Grant to Grantee if the Company acting in its absolute discretion
determines that the transfer of such shares might violate any applicable law or regulation.



3









 





     § 7. Taxes.




	 	(a)	 	Generally. Grantee is ultimately liable and
responsible for all U.S. federal income and other taxes, including any state,
local or non-U.S. income or employment tax obligation, that may be owed by
Grantee in connection with this Stock Grant and the underlying shares of Stock,
regardless of any action the Company or any of its Subsidiaries takes or any
transaction pursuant to this § 7 with respect to any tax withholding
obligations that arise in connection with this Stock Grant. As a condition and
term of this Stock Grant, no election under Section 83(b) of the Code may be
made by Grantee or any other person with respect to all or any portion of this
Stock Grant. The Company makes no representation or undertaking regarding the
treatment of any tax withholding in connection with the grant, issuance and
vesting of this Stock Grant or the subsequent sale of any of the shares of
Stock underlying this Stock Grant that vest. The Company does not commit and is
under no obligation to structure this Stock Grant to reduce or eliminate
Grantee’s tax liability.
	 
	 	(b)	 	Payment of Withholding Taxes. Grantee will be subject
to U.S. federal and state income and other tax withholding requirements on one
or more dates (generally, the date or dates that shares of Stock underlying
this Stock Grant vest or become nonforfeitable pursuant to § 3(a) of this Stock
Grant) determined by applicable law (any such date, the “Taxable Date”).
Grantee will be solely responsible for the payment of all U.S. federal income
and other taxes, including any state, local or non-U.S. income or employment
tax obligation that may be related to this Stock Grant and the underlying
shares of Stock, including any such taxes that are required to be withheld and
paid over to the applicable tax authorities (each such instance, a “Tax
Withholding Obligation”). Grantee will be responsible for the satisfaction of
each such Tax Withholding Obligation in a manner acceptable to the Company in
its sole discretion. Grantee’s acceptance of this Stock Grant constitutes
Grantee’s agreement to execute and deliver to the Company a Tax Withholding
Payment Authorization in substantially the form attached as Exhibit A to this
Stock Grant Certificate. In the event Grantee has not executed and delivered
to the Company the Tax Withholding Payment Authorization prior to a Taxable
Date, Grantee by acceptance of this Stock Grant authorizes the Company to
withhold from the shares of Stock underlying this Stock Grant the whole number
of shares of Stock with a value equal to the Fair Market Value of the shares of
Stock on such Taxable Date or the first trading day before the Taxable Date,
sufficient to satisfy the applicable Tax Withholding Obligation. Grantee
acknowledges by acceptance of this Stock Grant that the withheld shares of
Stock




4









 






	 	 	 	may not be sufficient to satisfy Grantee’s Tax Withholding Obligation.
Accordingly, Grantee agrees by acceptance of this Stock Grant to pay to the
Company as soon as practicable (immediately, if the Grantee is an executive
officer of the Company), including through payroll withholding, any amount of
the Tax Withholding Obligation that is not satisfied by the withholding of
shares of Stock described above.
	 
	 	(c)	 	Estimated Tax Withholding. Grantee by acceptance of
this Stock Grant understands and acknowledges that the withholding taxes to be
collected by the Company from Grantee in connection with this Stock Grant
pursuant to § 7(b) above are only an estimate of Grantee’s ultimate tax
liability in connection with this Stock Grant and that Grantee may be required
to pay additional income tax upon filing his or her annual tax return. Grantee
by acceptance of this Stock Grant understands that the Company cannot provide
Grantee tax advice and that Grantee should consult with his or her tax advisor
on such issues.





     § 8. No Right to Continue Service. None of the Plan, this Stock Grant Certificate, or
any related material shall give Grantee the right to remain employed by the Company or its
Affiliates or to continue in the service of the Company or its Affiliates in any other capacity.



     § 9. Governing Law. The Plan and this Stock Grant Certificate shall be governed by
the laws of the State of Delaware.



     § 10. Binding Effect. This Stock Grant Certificate shall be binding upon the Company
and Grantee and their respective heirs, executors, administrators and successors.



     § 11. Headings and Sections. The headings contained in this Stock Grant Certificate
are for reference purposes only and shall not affect in any way the meaning or interpretation of
this Stock Grant Certificate. All references to sections in this Stock Grant Certificate shall be
to sections of this Stock Grant Certificate unless otherwise expressly stated as part of such
reference.



     § 12. Availability of Copy of Plan and Plan Prospectus. A copy of the plan document
and prospectus for the ev3 Inc. Third Amended and Restated 2005 Incentive Plan are available on the
Company’s intranet portal under the “Employee Tools” section, which can be accessed by opening your
web browser from your Company desktop or laptop computer. If you like to receive a paper copy of
the plan document and/or plan prospectus, please contact:



5









 





Kevin M. Klemz

Senior Vice President, Secretary and Chief Legal Officer

ev3 Inc.

3033 Campus Drive

Plymouth, Minnesota 55441

(763) 398-7000

KKlemz@ev3.net




     § 13. Availability of Annual Report to Stockholders and Other SEC Filings. A copy of
the Company’s most recent annual report to stockholders and other filings made with the Securities
and Exchange Commission are available on the Company’s internet website, www.ev3.net, under
the Investors Relations—SEC Filings section. If you like to receive a paper copy of the Company’s
most recent annual report to stockholders and other filings made by the Company with the Securities
and Exchange Commission, please contact Kevin M. Klemz at the address, telephone number or e-mail
address above.



     § 14. Nature of the Grant. In accepting this Stock Grant, Grantee acknowledges that:




	 	(a)	 	the Plan is established voluntarily by the Company, it is
discretionary in nature and it may be modified, amended, suspended or
terminated by the Company at any time, unless otherwise provided in the Plan or
this Stock Grant Certificate;
	 
	 	(b)	 	the grant of the Stock Grant is voluntary and occasional and
does not create any contractual or other right to receive future Stock Grants,
or benefits in lieu of Stock Grants, even if Stock Grants have been granted
repeatedly in the past;
	 
	 	(c)	 	all decisions with respect to future Stock Grants, if any, will
be at the sole discretion of the Company;
	 
	 	(d)	 	Grantee is voluntarily participating in the Plan;
	 
	 	(e)	 	the Stock Grant is not part of normal or expected compensation
or salary for any purposes, including, but not limited to, calculating any
severance, resignation, termination, redundancy, end of service payments,
bonuses, long-service awards, pension or retirement benefits or similar
payments and in no event should be considered as compensation for, or relating
in any way to, past services for the Company or the Employer;
	 
	 	(f)	 	the future value of the shares of Stock subject to this Stock
Grant is unknown and cannot be predicted with certainty and the value of those
shares may increase or decrease;




6









 






	 	(g)	 	in consideration of the grant of the Stock Grant, no claim or
entitlement to compensation or damages shall arise from termination of the
Stock Grant or diminution in value of the Stock Grant or shares of Stock
acquired as a result of the Stock Grant resulting from termination of Grantee’s
employment or service by the Company or one of its Affiliates (for any reason
whatsoever and whether or not in breach of local labor laws) and Grantee
irrevocably releases the Company and its Affiliates from any such claim that
may arise; if, notwithstanding the foregoing, any such claim is found by a
court of competent jurisdiction to have arisen, then, by signing this Stock
Grant Certificate, Grantee shall be deemed irrevocably to have waived his or
her entitlement to pursue such claim;
	 
	 	(h)	 	the Company is not providing any tax, legal or financial
advice, nor is the Company making any recommendations regarding Grantee’s
participation in the Plan, or Grantee’s acquisition or sale of the underlying
shares of Stock; and
	 
	 	(i)	 	Grantee is hereby advised to consult with his or her own
personal tax, legal and financial advisors regarding his or her participation
in the Plan before taking any action related to the Plan.




7









 










Grantee acknowledges receipt of a copy of the Plan, represents that he or she is familiar with
the terms and provisions thereof, and hereby accepts the Stock Grant subject to all of the terms
and provisions hereof and thereof. Grantee has reviewed this Stock Grant Certificate and the Plan
in their entirety, has had an opportunity to obtain the advice of counsel and fully understands all
provisions of this Stock Grant Certificate and the Plan.




	 	 	 	 	 	 	 	 	 	 	 

	DATED: 

	 	 

	 	 
	 	SIGNED
	 	 

	 	 
	 

	 	 	 	 	 	 	 	Grantee	 	 






	 	 	 	 	 

	 

	 	Address:
                                                                  	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 







8