exv10w3






Exhibit 10.3




January 19, 2009




Shawn McCormick

3016 137th Avenue NE

Ham Lake, MN 55304




Dear Mr. McCormick:




     The Board considers the operation of the Subsidiary to be of critical importance to the Parent
Company and therefore the establishment and maintenance of a sound and vital management team of the
Subsidiary 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 Subsidiary 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 Subsidiary management will depart prior to a Change in Control of the Parent Company,
thereby leaving the Subsidiary without adequate management personnel during such a critical period,
and to reinforce and encourage the continued attention and dedication of key members of
Subsidiary’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 with the Subsidiary involves a
substantial commitment to the Parent Company in terms of your personal life and professional career
and the possibility of foregoing present and future career opportunities, for which the Parent
Company receives substantial benefits. Therefore, to induce you to remain in the employ of the
Subsidiary, this Agreement, which has been approved by the Board, sets forth the benefits which the
Parent Company agrees will be provided to you in the event your employment with the Subsidiary or
its successor is terminated in connection with a Change in Control of the Parent Company under the
circumstances described below.



     It is intended that the payments and benefits provided under this Agreement will be exempt
from the requirements of Section 409A of the Code by reason of the separation pay exception under
Treas. Reg. § 1.409A-1(b)(9) or the short term deferral exception under Treas. Reg. §
1.409A-1(b)(4) and this Agreement will be construed and administered in a manner that is
consistent with and gives effect to such intention.



 









 




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) “Base Pay” means your annual base salary from the Subsidiary at the rate in
effect immediately prior to a Change in Control or at the time Notice of Termination is
given, whichever is greater. Base Pay includes only regular cash salary and is determined
before any reduction for deferrals pursuant to any nonqualified deferred compensation plan
or arrangement, qualified cash or deferred arrangement or cafeteria plan.




(d) “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 Parent 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.




(e) “Bonus Plan Payment” means the full amount of the annual target bonus payment
which is payable by the Subsidiary to you pursuant to the Parent Company’s company-wide
bonus plan or equivalent plan of the Successor, based on the assumption that all of the
annual performance milestones will have been satisfied at target for such year.




(f) “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.




(g) “Cause” means: (i) your gross misconduct; (ii) your willful and continued
failure to perform substantially your duties with the Subsidiary (other than a failure
resulting from your incapacity due to bodily injury or physical or mental illness) after a
demand for substantial performance is delivered to you by the chair of the Board which
specifically identifies the manner in which you have not substantially performed your duties
and provides for a reasonable period of time within which you may take corrective measures;
or (iii) your conviction (including a plea of nolo contendere) of willfully engaging in
illegal conduct constituting a felony or gross



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misdemeanor under federal or state law which is materially and demonstrably injurious to the
Subsidiary or which impairs your ability to perform substantially your duties for the
Subsidiary. An act or failure to act will be considered “gross” or “willful” for this
purpose only if done, or omitted to be done, by you in bad faith and without reasonable
belief that it was in, or not opposed to, the best interests of the Subsidiary. Any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted by the
Subsidiary’s Board (or a committee thereof) or based upon the advice of counsel for the
Subsidiary will be conclusively presumed to be done, or omitted to be done, by you in good
faith and in the best interests of the Subsidiary. Notwithstanding the foregoing, you may
not be terminated for Cause unless and until there has been delivered to you a copy of a
resolution duly adopted by the affirmative vote of not less than a majority of the entire
membership of the Board at a meeting of the Board called and held for the purpose (after
reasonable notice to you and an opportunity for you, together with your counsel, to be heard
before the Board), finding that in the good faith opinion of the Board you were guilty of
the conduct set forth above in clauses (i), (ii) or (iii) of this definition and specifying
the particulars thereof in detail.




(h) “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(h), 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 directors of the Parent Company. For
purposes of this Section 1(h), 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.




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



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(j) “Date of Termination” following a Change in Control (or prior to a Change in
Control if your termination was either a condition of the Change in Control or was at the
request or insistence of any Third Party relating the Change in Control) means: (i) if your
employment is to be terminated by you for Good Reason, the date specified in the Notice of
Termination which in no event may be a date more than 15 days after the date on which Notice
of Termination is given unless the Subsidiary agrees in writing to a later date; (ii) if
your employment is to be terminated by the Subsidiary for Cause, the date specified in the
Notice of Termination; (iii) if your employment is terminated by reason of your death, the
date of your death; or (iv) if your employment is to be terminated by the Subsidiary for any
reason other than Cause or your death, the date specified in the Notice of Termination,
which in no event may be a date earlier than 15 days after the date on which a Notice of
Termination is given, unless you expressly agree in writing to an earlier date. In the case
of termination by the Subsidiary of your employment for Cause, then within the 30 days after
your receipt of the Notice of Termination, you may notify the Subsidiary that a dispute
exists concerning the termination, in which event the Date of Termination will be the date
set either by mutual written agreement of the parties or by the judge or arbitrator in a
proceeding as provided in Section 9 of this Agreement. In all cases, your termination of
employment must constitute a “separation from service” within the meaning of Section 409A of
the Code.




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




(l) “Good Reason” means:




(i) a material diminution in your authority, duties or responsibilities as in effect
immediately prior to the Change in Control;




(ii) a material diminution in your base compensation;




(iii) a material diminution in the authority, duties or responsibilities of the
supervisor to whom you report as in effect immediately prior to the Change in
Control;




(iv) a material change in the geographic location at which the Subsidiary requires
you to be based as compared to the location where you were based immediately prior
to the Change in Control; or




(v) any other action or inaction that constitutes a material breach by the
Subsidiary of any agreement under which you provide services to the Subsidiary.




An act or omission will constitute a “Good Reason” only if you give written notice to the
Subsidiary of the existence of such act or omission within 90 days of its initial existence
and the Subsidiary fails to cure the act or omission within 30 days after the notification.
Your termination of employment for Good Reason as defined in this Section 1(l) will
constitute Good Reason for all purposes of this Agreement notwithstanding that you may also
thereby be deemed to have retired under any applicable retirement programs of the Subsidiary
and/or Parent Company.




(m) “Notice of Termination” means a written notice given on or after the date of a
Change in Control (unless your termination before the date of the Change in Control was
either a condition of the Change in Control or was at the request or insistence of any Third
Party related to the Change in Control) which indicates the specific termination provision
in this Agreement pursuant



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to which the notice is given. Any purported termination by the Subsidiary or by you for
Good Reason on or after the date of a Change in Control (or before the date of a Change in
Control if your termination was either a condition of the Change in Control or was at the
request or insistence of any Third Party related to the Change in Control) must be
communicated by written Notice of Termination to be effective; provided, that your failure
to provide Notice of Termination will not limit any of your rights under this Agreement
except to the extent the Parent Company demonstrates that it suffered material actual
damages by reason of such failure.




(n) “Parent Company” means ev3 Inc., a Delaware corporation, and any Successor or
Affiliate of ev3 Inc.




(o) “Stock Incentive Plan” means (i) the ev3 LLC 2003 Incentive Plan, as amended,
(ii) the ev3 Inc. Second 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.




(p) “Stock Award Agreements” means any of the non-statutory stock option agreements,
incentive stock options agreements, restricted stock awards, restricted stock unit awards or
other similar agreements you may have entered into with the Parent Company pursuant to the
Stock Incentive Plans or in the absence of specific agreements, your individual certificates
otherwise representing such awards granted to you pursuant to the Stock Incentive Plans.




(q) “Subsidiary” means ev3 Endovascular, Inc., a Delaware corporation.




(r) “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 the
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.




(s) “Termination of Employment” means a termination of your employment relationship
with the Parent Company and all entities that would be treated as a single employer with the
Parent Company under Section 414(b) or (c) of the Internal Revenue Code (a “409A
Affiliate”), including the Subsidiary, or such other change in your employment relationship
with the Parent Company and all 409A Affiliates that would be considered a “separation from
service” under Section 409A of the Code. Your employment relationship will be treated as
remaining intact while you are on a military leave, a sick leave or other bona fide leave of
absence (pursuant to which there is a reasonable expectation that you will return to perform
services for the Parent Company or a 409A Affiliate) but only if the period of such leave
does not exceed six (6) months, or if longer, so long as you retain a right to reemployment
by the Parent Company or a 409A Affiliate under applicable statute or by contract, provided,
however, a twenty-nine (29) month period of absence may be substituted for such six (6)
month period of absence where your leave is due to any medically determinable physical or
mental impairment that can be expected to result in death or can be expected to last for a
continuous period of not less than six (6) months and such impairment causes you to be
unable to perform the duties of your position of employment or any substantially similar
position of employment. In all cases, your Termination of Employment must constitute a
“separation from service” under Section 409A of the Code and any “separation from service”
under Section 409A of the Code shall be treated as a Termination of Employment.



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(t) “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 employed by the Subsidiary or, if later, until the date on which the
Subsidiary’s obligations to you arising under this Agreement have been satisfied in full.
Notwithstanding the foregoing, this Agreement shall terminate immediately in the event, prior to a
Change in Control, either the Subsidiary ceases to be an Affiliate of the Parent Company or sells
all or substantially all of its assets, in one or a series of related transactions, to a Third
Party.



3. Benefits upon a Change in Control.





(a) As of the date of a Change in Control, the Parent Company and the Subsidiary will be
jointly and severally responsible for paying to you all of the Base Pay owed through such
date and a pro rata portion of your Bonus Plan Payment based upon the number of months in
the current year which you have worked prior to the date of the Change in Control, assuming
for this Section 3(a) that you have worked the full month of the month in which the Change
in Control occurs. In addition, as of the date of a Change in Control, the signing bonus
and the retention bonus that you received in January 2009 will fully “vest” and no longer be
subject to repayment.




(b) In addition to the payments under Section 3(a), you will be entitled to the following if
and only if (i) your Termination of Employment is by the Subsidiary for any reason other
than for Cause and other than your death, or by you for Good Reason, and (ii) the
Termination of Employment occurs either within the period beginning on the date of a Change
in Control and ending on the 24th month anniversary date of the Change in Control or prior
to a Change in Control if your Termination of Employment was either a condition of the
Change in Control or was at the request or insistence of a Person related to the Change in
Control:




(i) Cash Payments. The Parent Company and the Subsidiary (and any Successor
thereto) will be jointly and severally responsible for making a lump sum payment to
you within 10 days after your Date of Termination equal to 12 months of your then
current Base Pay and the full amount of a Bonus Plan Payment for the next 12 months,
determined by assuming for this purpose that such Bonus Plan Payment amount is equal
to your Bonus Plan Payment for the current year.




(ii) Group Health Plans. During the Continuation Period (as defined below),
the Parent Company and the Subsidiary (and any Successor thereto) will be jointly
and severally responsible for either (A) maintaining a group health plan(s) which by
its terms covers you (and your family members and those dependents eligible to be
covered during the 90 days immediately preceding a Change in Control) under the same
or similar terms as provided to you during the 90 days immediately preceding such
Change in Control, or (B) providing comparable medical benefits pursuant to an
alternative arrangement, such as an individual medical insurance contract. The
“Continuation Period” is the period beginning on your Date of Termination, whether
such date is at or prior to the Change in Control as provided for in the definition
of Change in Control or within 24 months thereafter, as the case may be, as provided
for in Section 3(a) above, and ending on the earlier of (A) the last day of the 18th
month that begins after your Date of Termination or (B) the date on which you first
become eligible to participate as an employee in a plan of another employer
providing group health benefits to you and your eligible family members and
dependents. If you timely elect continued coverage under such group



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health plan(s) pursuant to Section 4980B of the Internal Revenue Code of 1986 and
Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of
1974, as amended (“COBRA”), in accordance with ordinary plan practices, for the
Continuation Period, the Parent Company will reimburse you for a portion of the
amount you pay for such COBRA continuation coverage (or if COBRA coverage is not
available, such alternative medical coverage), so that you are paying the amount you
paid (or would have paid) for the same level of coverage prior to the Change in
Control. In order to receive reimbursements pursuant to this Section 3(b)(ii), you
must comply with any reimbursement policies and procedures specified by the Parent
Company.




To the extent you incur a tax liability (including foreign, federal, state and local
taxes) in connection with a benefit provided pursuant to this Section 3(b)(ii) which
you would not have incurred had you been an active employee of the Parent Company
participating in the Subsidiary, Parent Company or Successor participating in the
employer’s group health plan, you will receive a payment in an amount equal to such
tax liability plus an additional amount sufficient to permit you to retain a net
amount after all taxes equal to the initial tax liability in connection with the
benefit. The payment pursuant to this paragraph will be made within ten (10) days
after your remittal of a written request for payment accompanied by a statement
indicating the basis for and amount of your tax liability, but in no event will the
payment be made later than December 31 of the calendar year next following the
calendar year in which the related taxes are remitted to the appropriate taxing
authority.




(iii) Gross-Up Payments. Following a Change in Control, if the Parent
Company’s independent auditors determine that any payment or distribution by the
Parent Company and/or the Subsidiary to you (the “Payments”) will result in an
excise tax imposed by Code Section 4999 or any comparable state or local law, or any
interest or penalties with respect thereto, the Parent Company and the Subsidiary
(and any Successor thereto) will be responsible for making an additional cash
payment (a “Gross-Up Payment”) to you within 10 days after such determination equal
to an amount such that, after payment by you of all taxes (including any interest or
penalties imposed with respect to such taxes), including any excise tax, imposed
upon the Gross-Up Payment, you would retain an amount of the Gross-Up Payment equal
to the excise tax imposed upon the Payments. You will provide the Successor or the
Parent Company with a written certification that you will pay all taxes due on the
Payments and the Gross-Up Payment. The Gross-Up Payment will be made not later than
the March 15 following the calendar year in which the payment giving rise to the
Gross-Up Payment is received by you.




(iv) Outplacement Services. In the event any lump sum payments are made to
you pursuant to Section 3(b)(i), the Parent Company shall then provide you with up
to $20,000 of reasonable outplacement services actually incurred by you and directly
related to your termination of employment under Section 3(b)(i), including
outplacement consultant’s services, travel and hotel expense reimbursements, office
expense reimbursements or similar costs you incur in seeking and obtaining new
employment, the allocation of which among the categories to be within your sole
discretion, provided, however, such expenses must be incurred by you and reimbursed
hereunder no later than the December 31 of the second calendar year following the
calendar year in which your Termination of Employment occurs. You will be required
to provide receipts or invoices for the costs and expenses incurred under this
Section 3(b)(iv).



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4. Treatment of Stock Options and Other Equity-Based Awards. In the event of a Change in
Control, the treatment of your outstanding stock options, restricted stock, restricted stock units
and other equity-based awards will be governed by the Stock Incentive Plans under which such awards
were granted and any individual Stock Award Agreements representing and governing such awards.



5. 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, 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 Certificate of Incorporation or Bylaws or the 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.



6. Successors. The Parent Company will seek to have any Successor to the Parent Company,
by agreement in form and substance satisfactory to you, assume and assent to the fulfillment by
such Successor of the Parent Company’s obligations under this Agreement. A Successor has no
rights, authority or power with respect to this Agreement prior to a Change in Control.



7. 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.



8. 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.



9. 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
Parent 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
Parent Company and the Subsidiary will be jointly and severally responsible for paying, or if
elected


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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.



10. 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 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.



11. No Employment or Service Contract. Nothing in this Agreement is intended to provide
you with any right to continue in the employ of the Subsidiary 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 employment at any time for
any reason or no reason whatsoever, with or without cause.



12. 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.



13. 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 Parent Company the enclosed copy of this letter which will then constitute
our agreement on this subject.




	 	 	 	 	 
	 	Sincerely,



ev3 Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ev3 Endovascular, Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Agreed to and Accepted as of this ___ day of

January, 2009:

 	 
	 	 	 
	 	Shawn McCormick 	 
	 	 	 	 
	 




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