Exhibit 10.1


September 19, 2006


 


Mr. Dale A.
Spencer


503 N. Ferndale
Road


Wayzata, MN 
55391


Dear Dale:


The Board considers the operation of the Company to be
of critical importance to the Parent Company and therefore the establishment
and maintenance of a sound and vital management team of the Company is
essential to protecting and enhancing the best interests of the Parent Company
and its stockholders.  In this
connection, the Board recognizes that the possibility of a Change in Control of
the Parent Company may arise and that such possibility and the uncertainty and
questions which such transaction may raise among key management personnel of
the Company and its subsidiaries could result in the departure or distraction
of such management personnel to the detriment of the Parent Company and its
stockholders.


Accordingly, the Board has determined that appropriate
actions should be taken to minimize the risk that Company management will
depart prior to a Change in Control of the Parent Company, thereby leaving the
Company without adequate management personnel during such a critical period,
and to reinforce and encourage the continued attention and dedication of key
members of Company’s management to their assigned duties without distraction in
circumstances arising from the possibility of a Change in Control of the Parent
Company.  In particular, the Board
believes it important, should the Parent Company or its stockholders receive a
proposal for transfer of control of the Parent Company that you be able to continue
your management responsibilities without being influenced by the uncertainties
of your own personal situation.


The Board recognizes that continuance of your position
as a key consultant to the Subsidiary and a member of the Board involves a
substantial commitment in terms of your personal life and professional career
and the possibility of foregoing present and future career opportunities, for
which the Subsidiary and the Company receives substantial benefits.  Therefore, to induce you to remain as a key
consultant of the Subsidiary, this Agreement, which has been approved by the
Board, sets forth the benefits which the Company agrees will be provided to you
in the event of a Change in Control of the Parent Company under the
circumstances described below.


1.             Definitions.  The following terms will have the meaning set
forth below unless the context clearly requires otherwise.  Terms defined elsewhere in this Agreement
will have the same meaning throughout this Agreement.









 



(a)           “Affiliate”
means with respect to any Person (within the meaning of Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) shall mean any other
Person that, directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with such Person.


(b)           “Agreement”
means this letter agreement as amended, extended or renewed from time to time
in accordance with its terms.


(c)           “Benefit Plan”
means any


(i)            employee benefit plan
as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended;


(ii)           cafeteria plan
described in Code Section 125;


(iii)          plan, policy or practice
providing for paid vacation, other paid time off or short- or long-term profit
sharing, bonus or incentive payments; or


(iv)          stock option, stock
purchase, restricted stock, phantom stock, stock appreciation right or other
equity-based compensation plan that is sponsored, maintained or contributed to
by the Company for the benefit of employees (and/or their families and
dependents) generally or you (and/or your family and dependents) in particular,
including, without limitation, any of the Stock Incentive Plans.


(d)           “Board” means
the board of directors of the Parent Company. 
On and after the date of a Change in Control, any duty of the Board in
connection with this Agreement is nondelegable and any attempt by the Board to
delegate any such duty is ineffective.


(e)           “Change in Control”  means any of the following:  (i) the sale, lease, exchange or other
transfer, directly or indirectly, of all or substantially all of the assets of
the Parent Company, in one transaction or in a series of related transactions,
to any Third Party; (ii) any Third Party, other than a “bona fide underwriter,”
is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities (x) representing 50% or
more of the combined voting power of the Parent Company’s outstanding
securities ordinarily having the right to vote at elections of directors, or
(y) resulting in such Third Party becoming an Affiliate of the Parent Company,
including pursuant to a transaction described in clause (iii) below; (iii) the
consummation of any transaction or series of transactions under which the
Parent Company is merged or consolidated with any other company, other than a
merger or consolidation which would result in the stockholders of the Parent
Company immediately prior thereto continuing to own (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 50% of the combined voting power of the voting securities of
the surviving entity outstanding immediately after such merger or
consolidation; or (iv) the Continuity Directors cease for any reason to
constitute at least a majority the Board. 
For purposes of this Section 1(e), a “Continuity Director” means an
individual who, as of date of this Agreement, is a member of the board of
directors of the Parent Company, and any other individual who becomes a
director subsequent to the as of date of this Agreement whose election, or
nomination for election by the Parent Company’s stockholders, was approved by a
vote of at least a majority of the directors then comprising the Continuity
Directors, but excluding for this purpose any individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a person or
entity other than the board of



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directors of
the Parent Company.  For purposes of this
Section 1(e), a “bona fide underwriter” means a Third Party engaged in business
as an underwriter of securities that acquires securities of the Parent Company
through such Third Party’s participation in good faith in a firm commitment
underwriting until the expiration of 40 days after the date of such
acquisition.  For the avoidance of doubt,
Change in Control does not include any of the foregoing events occurring with
respect to the Subsidiary and this Agreement is not intended to be interpreted
to provide any benefits to you upon a Change in Control of the Subsidiary.


(f)            “Code” means
the Internal Revenue Code of 1986, as amended from time to time.


(g)           “Company” means
the Parent Company, any Successor and any Affiliate.


(h)            “Exchange Act”
means the Securities Exchange Act of 1934, as amended from time to time.


(i)            “Parent Company”
means ev3 Inc., a Delaware corporation.


(j)            “Subsidiary”
means ev3 Endovascular, Inc.


(k)           “Stock Incentive
Plan” means (i) the ev3 LLC 2003 Incentive Plan, as amended, (ii) the
ev3 Inc. Amended and Restated 2005 Incentive Stock Plan, or (iii) any successor
or additional stock option, stock award, or other incentive plans of the Parent
Company or Subsidiary.


(l)            “Stock Option
Agreements” means in any of the non-statutory stock option agreements,
incentive stock options agreements, restricted stock awards or other similar
agreements you may have entered into with the Company pursuant to the Stock
Incentive Plans.


(m)          “Successor” means
any Third Party that succeeds to, or has the ability to control (either
immediately or with the passage of time), the Parent Company’s or Subsidiary’s,
as applicable, business directly, by merger, consolidation or other form of
business combination, or indirectly, by purchase of the Parent Company’s
outstanding securities entitling the holder thereof to be allocated a portion
of the Parent Company’s net income, net loss or distributions or purchases of
the Subsidiary’s outstanding securities ordinarily having the right to vote at
the election of directors or all or substantially all of its assets or
otherwise.


(n)           “Third Party”
means any Person, other than the Parent Company, any Affiliate of the Parent
Company, or any Benefit Plan(s) sponsored by the Parent Company or an
Affiliate.


2.             Term of Agreement.  This Agreement is effective immediately and
will continue in effect only so long as you remain as either a consultant to
the Subsidiary or board member of the Parent Company or Subsidiary or, if
later, until the date on which the Parent Company’s or Subsidiary’s obligations
to you arising under this Agreement have been satisfied in full.


3.             Stock Option
Acceleration.  In the event of a
Change in Control, your then unvested, non-statutory stock options or other
stock awards granted to you by the Parent Company or Subsidiary under the
applicable Stock Option Agreements as of the Change in Control shall become
fully vested and immediately exercisable upon the closing of the Change in
Control.


4.             Indemnification.  Following a Change in Control, the Parent
Company and the Subsidiary shall be jointly and severally responsible for
indemnifying and advancing expenses to you to the full extent permitted by law
for damages, costs and expenses (including, without limitation, judgments,
fines,



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penalties, settlements
and reasonable fees and expenses of your counsel) incurred by you as a result
of your service to or status as an officer and employee with the Parent Company
or the Subsidiary or any other corporation, employee benefit plan or other
entity with whom you served at the request of the Parent Company or the
Subsidiary prior to the Change in Control, provided that such damages, costs
and expenses did not arise as a result of your gross negligence or willful
misconduct.  The indemnification under
this Agreement shall be in addition to any similar obligation of the Parent
Company or the Subsidiary under any other separate agreement, or under the Parent
Company’s or Subsidiary’s Certificate of Incorporation or Bylaws, or as they be
amended from time to time, provided however, you may only be reimbursed or
recover once for any such damages, costs and expenses, from whatever source.


5.             Binding Agreement.  This Agreement inures to the benefit of, and
is enforceable by, you, your personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If you
die after a Change in Control while any amount would still be payable to you
under this Agreement, all such amounts, unless otherwise provided in this
Agreement, will be paid in accordance with the terms of this Agreement to your
devisee, legatee or other designee or, if there be no such designee, to your
estate.


6.             Notices.  For the purposes of this Agreement, notices
and other communications provided for in this Agreement must be in writing and
will be deemed to have been duly given when personally delivered or when mailed
by United States registered or certified mail, return receipt requested,
postage prepaid and addressed to each party’s respective address set forth on
the first page of this Agreement, or to such other address as either party may
have furnished to the other in writing in accordance with these provisions,
except that notice of change of address will be effective only upon receipt.


7.             Disputes.  If you so elect, any dispute, controversy or
claim arising under or in connection with this Agreement will be heard and
settled exclusively by binding arbitration administered by the American
Arbitration Association in Minneapolis, Minnesota before a single arbitrator in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect.  Judgment may
be entered on the arbitrator’s award in any court having jurisdiction;
provided, that you may seek specific performance in a court of competent
jurisdiction of your right to receive benefits until the Date of Termination
during the pendency of any dispute or controversy arising under or in
connection with this Agreement.  If any
dispute, controversy or claim for damages arising under or in connection with
this Agreement is settled by arbitration, the Company and the Subsidiary will
be jointly and severally responsible for paying, or if elected by you, reimbursing,
all fees, costs and expenses incurred by you related to such arbitration.  If you do not elect arbitration, you may
pursue all available legal remedies.  The
Company and the Subsidiary will be jointly and severally responsible for
paying, or if elected by you, reimbursing you for, all fees, costs and expenses
incurred by you in connection with any actual, threatened or contemplated
litigation relating to this Agreement to which you are or reasonably expect to
become a party, whether or not initiated by you, if but only if you are
successful in recovering any benefit under this Agreement as a result of such
legal action.  The parties agree that any
litigation arising under or in connection with this Agreement must be brought
in a court of competent jurisdiction in the State of Minnesota, and both
parties hereby consent to the exclusive jurisdiction of said courts for this
purpose and agree not to assert that such courts are an inconvenient
forum.  Neither the Parent Company nor
the Subsidiary will assert in any dispute or controversy with you arising under
or in connection with this Agreement your failure to exhaust administrative
remedies.


8.             Related Agreements.  To the extent that any provision of any other
Benefit Plan or agreement between the Parent Company and you or the Subsidiary
and you limits, qualifies or is inconsistent with any provision of this
Agreement, the provision of this Agreement will control. Nothing in this
Agreement prevents or limits your continuing or future participation in, and rights
under, any Benefit Plan provided by the Parent Company or the Subsidiary and
for which you may qualify.  Amounts which
are vested



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benefits or to which you
are otherwise entitled under any Benefit Plan or other agreement with the
Parent Company or the Subsidiary at or subsequent to the Date of Termination
will be payable in accordance with the terms thereof.  Furthermore, nothing in this Agreement will
prevent the Parent Company, the Subsidiary or the Successor to the Parent
Company or the Subsidiary from seeking enforcement of and damages arising under
any confidentiality, invention assignment or non-competition provision or
breach thereof contained in any other agreement with the Parent Company or the
Subsidiary or any Successor to the Parent Company or the Subsidiary.


9.             No Employment or
Service Contract.  Nothing in this
Agreement is intended to provide you with any right to continue to provide
services to the Subsidiary in any capacity for any period of specific duration
or interfere with or otherwise restrict in any way your rights or the rights of
the Subsidiary, which rights are hereby expressly reserved by each, to
terminate your services at any time for any reason or no reason whatsoever,
with or without cause.


10.           Survival.  The respective obligations of, and benefits
afforded to, the Parent Company, the Subsidiary and you which by their express
terms or clear intent survive termination of your employment with the
Subsidiary or termination of this Agreement, as the case may be, will survive termination
of your employment with the Subsidiary or termination of this Agreement, as the
case may be, and will remain in full force and effect according to their terms.


11.           Miscellaneous.  No provision of this Agreement may be
modified, waived or discharged other than in a writing signed by you, the
Parent Company and the Subsidiary.  No
waiver by any party to this Agreement at any time of any breach by another
party of any provision of this Agreement will be deemed a waiver of any other
provisions at the same or at any other time. 
This Agreement reflects the final and complete agreement of the parties
and supersedes all prior and simultaneous agreements with respect to the
subject matter hereof, including without limitation any change in control or
similar agreement between any past, current or future Affiliate of the Parent
Company or the Subsidiary and you.  This
Agreement will be governed by and construed in accordance with the laws of the
State of Delaware (without regard to the conflict of laws principles of any
jurisdiction).  The invalidity or
unenforceability of all or any part of any provision of this Agreement will not
affect the validity or enforceability of the remainder of such provision or of
any other provision of this Agreement. 
This Agreement may be executed in several counterparts, each of which
will be deemed an original, but all of which together will constitute one and
the same instrument.



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If this letter correctly sets forth our agreement on
the subject matter discussed above, kindly sign and return to the Company the
enclosed copy of this letter which will then constitute our agreement on this
subject.


Sincerely,


	
  ev3 Inc.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ James M.
  Corbett

  	
   

  	
   

  
	
   

  	
  Name: James M.
  Corbett

  	
   

  
	
   

  	
  Title: President
  and CEO

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ev3
  Endovascular, Inc.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Patrick D.
  Spangler

  	
   

  	
   

  
	
   

  	
  Name: Patrick D.
  Spangler

  	
   

  
	
   

  	
  Title: Vice
  President and CFO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Agreed to and
  Accepted as of this 22nd day of September,

  
	
  2006.

  	
   

  
	
   

  	
   

  
	
  /s/ Dale A.
  Spencer

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dale A. Spencer

  	
   

  
							



 



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