SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release ("Agreement") is given by M.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Employee") in consideration of the commitments made to Employee
by Thoratec Corporation ("Thoratec"), all of which commitments are set forth in
this document.
WHEREAS, Employee has been an employee of Thoratec since July 16, 2001.
WHEREAS, in connection with his duties at Thoratec he has served as an
officer of Thoratec and an officer and director of Thoratec's
subsidiary International Technidyne Corporation and Thoratec Europe
Limited.
WHEREAS, the parties wish to ensure an orderly departure and amicable
resolution of all possible claims or disputes between them arising from
the Employee's resignation from Thoratec and its subsidiaries.
THEREFORE, the parties mutually agree as follows:
I. Employee hereby resigns from his positions as (i) Senior Vice
President, Chief Financial Officer and Secretary of Thoratec, (ii) Vice
President, Chief Financial Officer and director of International
Technidyne Corporation, (iii) a director of Thoratec Europe Limited and
from all other offices or directorships of Thoratec and (iv) any of its
subsidiaries, effective as of December 17, 2004 ("Separation Date").
II. Employee acknowledges, and Thoratec agrees, that Employee will receive
payment within three (3) days after the Separation Date for all earned
and unpaid salary, plus all accrued and unused vacation (equivalent to
twenty two thousand one hundred ninety-seven dollars ($22,197).
Employee and Thoratec acknowledge and agree that no deferred salary
remains payable to Employee, and that there is no agreement to defer
payment of any future salary to which Employee may be entitled.
III. Thoratec agrees to pay Employee two hundred fifty six thousand five
hundred dollars ($256,500) (equivalent to twelve (12) months of
Employee's salary with Thoratec). This payment will be made in a lump
sum, on the next regular payroll date following the eighth day after
Thoratec receives a fully-executed original of this Agreement, provided
that Employee has not timely revoked this Agreement and provided
further that such payment shall be made in no event earlier than the
first scheduled Thoratec payroll in January 2005.
IV. Thoratec further agrees to pay the cost of six months of Employee's
mortgage differential as outlined in his offer letter, dated June 10,
2001. This amount (one thousand nine hundred eighty six dollars and
thirty six cents ($1,986.36) per month) equates to eleven thousand nine
hundred eighteen dollars and sixteen cents ($11,918.16) to be paid in a
lump sum. This payment will be made no earlier than the eighth day
after Thoratec receives a fully-executed original of this Agreement,
provided that Employee has not timely revoked this Agreement and
provided further that such payment shall be made in no event earlier
than the first scheduled Thoratec payroll in January 2005.
V. Thoratec further agrees to pay the cost of Employee's COBRA premiums
for the first twelve (12) months of his COBRA eligibility. This amount
(nine hundred sixty three dollars and eighty seven cents ($963.87) per
month for medical coverage and one hundred nineteen dollars and fifty
four cents ($119.54) per month for dental coverage) equates to thirteen
thousand dollars and ninety two cents ($13,000.92) to be paid in a lump
sum. This payment will be made on the eighth day after Thoratec
receives a fully-executed original of this Agreement, provided that
Employee has not timely revoked this Agreement and provided further
that such payment shall be made in no event earlier than the first
scheduled Thoratec payroll in January 2005.
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VI. Thoratec further agrees to pay Employee his 2004 Executive Incentive
Plan bonus payment, to be paid in a lump sum, upon final determination
of all individual and corporate bonus objectives in February 2005, and
no earlier than the eighth day after Thoratec has received a
fully-executed original of this Agreement, provided that Employee has
not timely revoked this Agreement. For the purposes of such payment,
Thoratec represents that Employee has achieved one hundred percent
(100%) of his individual bonus objectives for 2004 (representing half
of the total objectives constituting Employee's 2004 bonus objectives).
The remaining corporate bonus objectives will be determined in February
2005 in strict accordance with Thoratec's achievement of such financial
goals as set forth in the 2004 Executive Incentive Plan.
VII. Thoratec further agrees to pay the cost of out-placement and other
professional services not to exceed an aggregate amount of twenty seven
thousand five hundred dollars ($27,500). This payment will be made
directly to the appropriate vendor(s) who are approved in advance by
Thoratec (in Thoratec's sole and absolute discretion) upon receipt of
invoicing, provided (i) such services are rendered within six (6)
months from the Separation Date and (ii) that Employee timely executes
and does not revoke this Agreement.
VIII. If Employee fails to sign and return the original of this Agreement to
Thoratec, or revokes this Agreement, within the time periods provided,
Employee will not be entitled to any of the payments set forth in
Paragraphs III through VII above.
IX. In consideration for the payments and benefits provided in Paragraphs
III through VII above, Employee, for himself and for each of his
representatives, heirs, successors and assigns, does hereby release,
acquit and forever discharge Thoratec and its parent companies,
affiliates, subsidiaries, divisions and related companies, and the
past, present and future employees, agents, attorneys, officers,
directors, shareholders, partners, heirs, executors, administrators,
insurers, successors, and assigns (all hereinafter "Releasees") from
and against any and all claims, rights, demands, actions, obligations,
liabilities and causes of action, whether asserted or unasserted, of
any and every kind, nature and character whatsoever, known or unknown,
that he may now have or has ever had against Releasees, or any of them,
including but not limited to those arising from or in any way connected
with or related to Employee's employment by Releasees, or any of them,
the termination of that employment, the prior lack of such employment;
or any claims or demands related to salary, bonuses, commissions,
stock, stock options, or any other ownership interests, vacation pay,
fringe benefits, expense reimbursements, severance pay, or any other
form of compensation; or any claims of discrimination, harassment or
retaliation, including but not limited to claims arising under Title
VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act of 1967, as amended, the Older Workers Benefit
Protection Act, the Fair Labor Standards Act, the Consolidated Omnibus
Budget Reconciliation Act, the Americans with Disabilities Act, the
California Fair Employment and Housing Act, and any claims arising
under any federal, state or local law, and all acts or omissions of
Releasees, or any of them, whatsoever heretofore occurring or arising.
Employee acknowledges that the consideration given for the waiver and
release in the preceding paragraph is in addition to anything of value
to which he was already entitled.
A. Employee understands and agrees that this Agreement is a full
and final release covering all known and unknown and
unanticipated injuries, debts, claims or damages to him that
have arisen or may have arisen from any matters, acts,
omissions or dealings released in this Paragraph IX.
Therefore, as to these matters released above, Employee hereby
expressly waives and relinquishes any and all rights or
benefits that he may now have, or in the future may have under
the terms of California Civil Code Section 1542 and any
similar law of any state or territory of the United States.
Said section provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
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Employee acknowledges that he is aware that he may hereafter
discover facts in addition to, or different from, those which
he now knows or believes to be true, but it is his intention
hereby, fully and finally and forever, to settle and to
release any and all matters, disputes and differences, known
or unknown, suspected or unsuspected, that do now exist, may
exist or heretofore have existed with respect to those matters
described in this Paragraph IX.
B. Except as otherwise provided by law, Employee agrees that he
will not file, refile, or prosecute any claim, charge,
grievance, complaint or action for monetary damages, before
any local, state or federal court, arbitrator, or
administrative agency, board or tribunal concerning any matter
which was or could have been raised in connection with any
matter released in this Paragraph IX. Employee further agrees,
except as otherwise provided by law, to promptly dismiss or
withdraw with prejudice any charges, claims or complaints
regarding any matter released in this Paragraph IX.
C. Also in consideration for the payments and benefits provided
in Paragraphs III through VII above, Employee agrees that the
existence of, reasons for and terms of this Agreement will be
held by him in the strictest confidence and will not be
disclosed by him, directly or indirectly, to any person or
entity, including but not limited to past, current or future
Thoratec employees, except that Employee may disclose the
settlement of his claims and this Agreement as required by law
and to his spouse, tax advisors and attorneys on the condition
that they agree to hold the terms of this Agreement in
strictest confidence and that Employee agrees to accept
responsibility for any breach of confidentiality by those
individuals. Employee specifically agrees that he will not
disclose that he has received the payments or benefits
described in Paragraphs III through VII or that he received
from Releasees any payment, money, compensation, property or
expense reimbursement in any form or sum whatsoever relating
to the settlement of any matter described in Paragraph IX or
otherwise. In response to a question about any such matter,
Employee may only state that "the matter has been resolved,"
unless otherwise required by law. Thoratec's obligations under
this Agreement are contingent on Employee complying with this
confidentiality provision as well as all of Employee's other
obligations under this Agreement. Notwithstanding the
foregoing, once this Agreement has been filed by Thoratec with
the Securities and Exchange Commission, Employee may disclose
or refer to any of the provisions hereof but only to the
extent of describing any such provision and not to the extent
it would otherwise derogate from his confidentiality
obligations set forth in this Paragraph IX.
D. "The parties expressly agree and acknowledge that,
notwithstanding anything in this Agreement to the contrary,
this release and waiver does not include any or all claims,
rights, demands, actions, obligations, liabilities, and/or
causes of action that Employee, or each of his
representatives, heirs, successors and assigns, may now have
or have ever had against the Releasees for contribution,
indemnification, or under California Corporate Code Sections
204(a)(10) and 309(c) arising out of or related to any and all
actions and/or claims brought against Employee by any third
party related to his employment with Thoratec or any of its
subsidiaries or related companies."
E. As of the date of this Agreement, Thoratec represents and
confirms that it is not presently aware of any cause of action
or claim it has or may have against Employee for fraud or
misconduct under the securities laws of the United States or
of any state.
X. Employee agrees that Thoratec has paid or provided him any and all
salary, other wages, bonuses, commissions, incentives, vacation pay,
severance pay and/or stock options he is owed, and that no such further
payments or amounts are owed or will be owed, except as otherwise
expressly
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described in this Agreement or in the Consulting Services Agreement
between Employee and Thoratec dated as of the date hereof (the
"Consulting Services Agreement").
XI. Employee agrees that he shall be personally responsible for the payment
of any and all taxes which may be due on the payments described in
Paragraphs III through VII of this Agreement. Employee further
acknowledges that Thoratec does not make and has not made any
representations regarding the taxability of such payments from Thoratec
to Employee, and Employee has not relied on any representations of
Thoratec on that subject. Employee further acknowledges and agrees that
he will indemnify Thoratec for, and hold Thoratec harmless from, any
liability, taxes, penalties, or assessments that Thoratec may incur as
a result of any failure by Employee to pay appropriate taxes on the
payments received from Thoratec pursuant to Paragraphs III through VII
of this Agreement.
XII. Employee agrees to return to Thoratec all Thoratec documents (and all
copies thereof) and other Thoratec property that Employee had in his
possession at any time, including, but not limited to, files, notes,
drawings, records, business plans and forecasts, financial information,
specifications, computer-recorded information, tangible property,
credit cards, entry cards, identification badges and keys, any
materials of any kind that contain or embody any proprietary or
confidential information of Thoratec (and all reproductions thereof) on
or before the Separation Date except for (a) the Employee's laptop
computer furnished by Thoratec and (b) any such documents or other
property that the parties mutually agree is required to be retained by
Employee for the performance of the services under the Consulting
Services Agreement.
XIII. This Agreement is binding on and for the benefit of Employee and
Releasees, and their respective heirs, beneficiaries, executors,
administrators, successors and assigns, wherever the context requires
or admits.
XIV. Employee declares that, prior to his execution and delivery of this
Agreement, he had the opportunity to consult legal counsel and he
apprised himself of sufficient relevant information, through sources of
his own selection, in order that he might intelligently exercise his
own judgment in deciding whether to execute it, and in deciding on the
contents hereof. Employee further declares that this decision is not
predicated on or influenced by any declarations or representations of
the persons or entities released or any predecessors in interest,
successors, assigns, officers, directors, employees, attorneys, or
agents of said entities other than as may be contained in this
instrument. Employee represents and warrants that he has the sole right
and authority to execute this Agreement and that he has not assigned or
transferred, or purported to have assigned or transferred, to any
corporation, entity or person, any dispute or claims released herein or
any amount of money related hereto.
XV. Employee further agrees that for a period of one (1) year after the
Separation Date, Employee will not, except with the advance written
approval of Thoratec, voluntarily or involuntarily, for any reason
whatsoever, directly or indirectly, individually or on behalf of
persons not now parties to this Agreement, or as a partner, founder,
stockholder, director, officer, principal, agent, employee or in any
other capacity or relationship, for Employee's own account or for the
benefit of any other person, encourage, induce, attempt to induce,
solicit or attempt to solicit anyone who is employed at that time, or
was employed during the previous one (1) year, by Thoratec or any
affiliate to leave his or her employment with Thoratec or any of its
affiliates.
XVI. Employee expressly states that he has read this Agreement and
understands all of its terms, that the preceding paragraphs recite the
sole consideration for this Agreement and that all agreements and
understandings between the parties are embodied and expressed herein;
and that this Agreement contains the entire agreement of the parties
with regard to matters covered in it, and supersedes in all respects
any other agreements and understandings that may have occurred between
Employee and Thoratec, except for the agreements as described in
sections XXI and XXII herein below which shall survive this Agreement.
This Agreement is executed voluntarily and with full knowledge of its
significance.
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XVII. If any provision or portion of this Agreement shall be adjudged by a
court to be void or unenforceable, the same shall in no way affect any
other provision of this Agreement, the application of such provision in
any other circumstances, or the validity or enforceability of this
Agreement.
XVIII. This Agreement may not be changed or modified, in whole or in part,
except by an instrument in writing signed by Employee and an officer of
Thoratec.
XIX. Employee acknowledges his understanding that he may take twenty-one
(21) days to consider whether he should sign and deliver this Agreement
and that he has been advised that he should consult with an attorney,
if he decides to do so, prior to executing and delivering this
Agreement. Employee further acknowledges that he has seven (7) days
following his execution and delivery of this Agreement to revoke this
Agreement; and that this Agreement will not be effective until the date
upon which the revocation period has expired without a revocation by
him of this Agreement, which will be the eighth day after this
Agreement is executed by Employee. To revoke acceptance, Employee must
send a written notice to Thoratec Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: General Counsel, by 5:00 p.m. on or before
the seventh day after Employee signs this Agreement. All time limits
set forth herein refer to calendar days unless otherwise specified. If
the expiration of any time limit set forth herein falls on a weekend or
a holiday observed by Thoratec, the time limit will be deemed to end at
the close of business on the next workday.
XX. This Agreement will be deemed to have been entered into and will be
construed and enforced in accordance with the laws of the State of
California without regard to principles of conflicts of laws. The
parties hereby agree to submit to the exclusive jurisdiction of the
courts of the State of California and the Federal courts of the United
States of America located within the County of Alameda in the State of
California for any action to enforce this Agreement. The parties may
proceed to protect and enforce its rights either by suit in equity
and/or by action at law, including, but not limited to, an action for
damages as a result of any such breach and/or an action for specific
performance of any provision contained in this Agreement. If either
party brings an action to enforce the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees and
costs.
XXI. Employee acknowledges that the Employee's obligations under the
Employee Confidential Information and Inventions Agreement between
Thoratec and Employee dated August 7, 2001, and attached as EXHIBIT A
hereto, are continuing and survive the termination of Employee's
employment with Thoratec, except for subsections (iii) and (iv) of
section 9 of such agreement, entitled "Non-Solicitation", which shall
be deemed to be deleted therefrom and of no further force or effect.
XXII. For the avoidance of doubt, the obligations of the parties pursuant to
(a) the Thoratec Corporation Indemnity Agreement executed by Thoratec
and Employee dated August 6, 2001 and attached as EXHIBIT B hereto and
(b) the Consulting Services Agreement shall be continuing and shall
survive the execution of this Agreement in accordance with the terms of
such agreements.
XXIII. All payments to be made by Thoratec to Employee hereunder shall be
reduced by the amount of any customary deductions and any withholding
for federal and state taxes as deemed by Thoratec to be required by
applicable law. Thoratec will provide notice to Employee of all such
deductions and withholdings.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
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By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Dated: December 17, 2004
__________________________
M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
THORATEC CORPORATION
By: /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Dated: December 17, 2004
__________________________
D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: President and Chief Executive Officer
6
THORATEC CORPORATION
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (the "Agreement") is made by and between
THORATEC CORPORATION, a California corporation (the "Company"), and M. ▇▇▇▇▇
▇▇▇▇▇▇▇▇, an officer of the Company (the "Indemnitee") as of this 6th day of
August 2001.
RECITALS
A. The Company is aware that competent and experienced persons are
increasingly reluctant to serve as directors and officers of corporations unless
they are protected by comprehensive liability insurance or indemnification, due
to increased exposure to litigation costs and risks resulting from their service
to such corporations, and due to the fact that the exposure frequently bears no
reasonable relationship to the compensation of such directors or officers.
B. The statutes and judicial decisions regarding the duties of directors
and officers are often difficult to apply, ambiguous, or conflicting, and
therefore fail to provide such directors and officers with adequate, reliable
knowledge of legal risks to which they are exposed or information regarding the
proper course of action to take.
C. Plaintiffs often seek damages in such large amounts and the costs of
litigation may be so enormous (whether or not the case is meritorious), that the
defense and/or settlement of such litigation is beyond the personal resources of
directors and officers.
D. The Company believes that it is unfair for its directors and officers
to assume the risk of huge judgments and other expenses which may occur in cases
in which the director or officer received no personal profit and in cases where
the director or officer was not culpable.
E. The Company recognizes that the issues in controversy in litigation
against a director or officer of a corporation such as the Company are often
related to the knowledge, motives, and intent of such director or officer, that
he or she is usually the only witness with knowledge of the essential facts and
exculpating circumstances regarding such matters and that the long period of
time which usually elapses before the trial or other disposition of such
litigation often extends beyond the time that the director or officer can
reasonably recall such matters and may extend beyond the normal time for
retirement for such director or officer with the result that he or she, after
retirement or in the event of death, his or her spouse, heirs, executors or
administrators, may be faced with limited ability
and undue hardship in maintaining an adequate defense, which may discourage such
a director or officer from serving in that position.
F. Based upon their experience as business managers, the Board of
Directors of the Company (the "Board") has concluded that, to retain and attract
talented and experienced individuals to serve as directors and officers of the
Company and to encourage such individuals to take the business risks necessary
for the success of the Company, it is necessary for the Company to contractually
indemnify its directors and officers, and to assume for itself maximum
liability for expenses and damages in connection with claims against such
directors and officers in connection with their service to the Company, and has
further concluded that the failure to provide such contractual indemnification
could result in great harm to the Company and the Company's shareholders.
G. Section 317 of the California Corporations Code (the "Code"), under
which the Company is organized ("Section 317"), empowers the Company to
indemnify persons who serve, at the request of the Company, as the directors,
officers, employees or agents of other corporations or enterprises, and
expressly provides that the indemnification provided by Section 317 is not
exclusive.
H. The Company desires and has requested the Indemnitee to serve or
continue to serve as a director or officer of the Company free from undue
concern for claims for damages arising out of or related to such services to the
Company.
I. The Indemnitee is willing to serve, or to continue to serve, the
Company, provided that he or she is furnished the indemnity provided for herein.
THE PARTIES AGREE AS FOLLOWS:
1. Definitions. As used herein, the following terms shall have the
following meanings:
(a) Agent. "Agent" of the Company means any persons who is or
was a director, officer, employee or other agent of the Company or a
Subsidiary (as defined below); or is or was serving at the request of,
for the convenience of, or to represent the interests of the Company or
a Subsidiary as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust or
other enterprise; or was a director, officer, employee or agent of a
foreign or domestic corporation which was a predecessor corporation of
the Company or a Subsidiary or was a director, officer, employee or
agent of another enterprise at the request of, for the convenience of,
or to represent the interests of such predecessor corporation.
(b) Expenses. "Expenses" include all direct and indirect costs
of any type or nature whatsoever (including, without limitation, all
attorneys' fees and related disbursements, other out-of-pocket costs
and reasonable compensation for time spent by the Indemnitee for which
he or she is not otherwise compensated by the Company or any
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third party) actually and reasonably incurred by the Indemnitee in
connection with either the investigation, defense or appeal of a
proceeding or establishing or enforcing a right to indemnification
under this Agreement, Section 317 or otherwise; provided, however, that
expenses shall not include any judgments, fines, ERISA excise taxes or
penalties or amounts paid in settlement of a proceeding.
(c) Proceeding. "Proceeding" means any threatened, pending, or
completed action, suit or other proceeding, whether civil, criminal,
administrative, investigative or any other type whatsoever.
(d) Subsidiary. "Subsidiary" means any corporation of which
more than 50% of the outstanding voting securities is owned directly or
indirectly by the Company, by the Company and one or more other
subsidiaries, or by one or more other subsidiaries.
2. Agreement to Serve. The Indemnitee agrees to serve and/or continue
to serve as a director and/or officer of the Company, at its will, so long as
the Indemnitee is duly appointed or elected and qualified in accordance with the
applicable provisions of the by-laws of the Company or until such time as the
Indemnitee tenders his/her resignation in writing.
3. Mandatory Indemnification. The Company shall indemnify the
Indemnitee, as follows:
(a) Third Party Actions. If the Indemnitee is a person who was
or is a party or is threatened to be made a party to any Proceeding
(other than an action by or in the right of the Company) by reason of
the fact that the Indemnitee is or was an Agent of the Company, or by
reason of anything done or not done by the Indemnitee in any such
capacity, against any and all Expenses and liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA
excise taxes or penalties, and amounts paid in settlement) actually
and reasonably incurred by the Indemnitee in connection with the
investigation, defense, settlement or appeal of such proceeding if the
Indemnitee acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal proceeding, had no
reasonable cause to believe his conduct was unlawful; and
(b) Derivative Actions. If the Indemnitee is a person who was
or is a party or is threatened to be made a party to any Proceeding by
or in the right of the Company to procure a judgement in its favor by
reason of the fact that the Indemnitee is or was an Agent of the
Company, or by reason of anything done or not done by the Indemnitee in
any such capacity, against any amounts paid in settlement of any such
proceeding and all Expenses actually and reasonably incurred by the
Indemnitee in connection with The investigation, defense, settlement,
or appeal of such proceeding if the Indemnitee acted in good faith and
in a manner the Indemnitee reasonably believed to be in or not opposed
to the best interests of the Company; except that no indemnification
under this subsection shall be made in respect of any claim, issue or
matter as to which such person shall have been finally adjudged to be
liable to the Company by a court of competent jurisdiction
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due to willful misconduct of a culpable nature in the performance of a
duty to the Company unless and only to the extent that the court in
which such proceeding was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such amounts which the court shall deem
proper; and
(c) Actions where Indemnitee is Deceased. If the Indemnitee is
a person who was or is a party or is threatened to be made a party to
any Proceeding by reason of the fact that the Indemnitee is or was an
Agent of the Company, or by reason of anything done or not done by the
Indemnitee in any such capacity, against any and all Expenses and
liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes and penalties, and amounts paid in
settlement) actually and reasonably incurred by or for the Indemnitee
in connection with the investigation, defense, settlement or appeal of
such proceeding if the Indemnitee acted in good faith and in a manner
the Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and, prior to, during the pendency or after
completion of such proceeding Indemnitee is deceased, except that in a
proceeding by or in the right of the Company no indemnification shall
be due under the provisions of this subsection in respect of any claim,
issue or matter as to winch such person shall have been finally
adjudged to be liable to the Company, by a court of competent
jurisdiction, due to willful misconduct of a culpable nature in the
performance of his duty to the Company, unless and only to the extent
that the court in which such proceeding was brought shall determine
upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such amounts which the court shall
deem proper.
(d) Notwithstanding the foregoing, the Company shall not be
obligated to indemnify the Indemnitee for Expenses or liabilities of
any type whatsoever (including, but not limited to, judgments, fines,
ERISA excise taxes or penalties, and amounts paid in settlement) which
have been paid directly to Indemnitee by D&O Insurance.
4. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of any Expenses or liabilities of any type whatsoever (including, but
not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts
paid in settlement) incurred by the Indemnitee in the investigation, defense,
settlement or appeal of a proceeding but not entitled, however, to
indemnification for all of the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for that portion thereof to which the
Indemnitee is entitled.
5. Mandatory Advancement of Expenses. Subject to Section 10(a) below,
the Company shall advance all Expenses incurred by the Indemnitee in connection
with the investigation, defense, settlement or appeal of any proceeding to which
the Indemnitee is a party or is threatened to be made a party by reason of the
fact that the Indemnitee is or was an Agent of the Company. Indemnitee hereby
undertakes to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined pursuant to Section 7 hereof that the Indemnitee
is
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not entitled to be indemnified by the Company as authorized hereby, and such
undertaking should be deemed to satisfy the requirements of Section 317(f) of
the Code. The advances to be made hereunder shall be paid by the Company to the
Indemnitee within 20 days following delivery of a written request therefor by
the Indemnitee to the Company.
6. Notice and Other Indemnification Procedures.
(a) Promptly after receipt by the Indemnitee of notice of the
commencement of, or the threat of commencement of, any Proceeding, the
Indemnitee shall, if the Indemnitee believes that indemnification with
respect thereto may be sought from the Company under this Agreement,
notify the Company of the commencement or threat of commencement
thereof.
(b) If, at the time of the receipt of a notice of the
commencement of a Proceeding pursuant to Section 6(a) hereof, the
Company has D&O Insurance in effect, the Company shall give prompt
notice of the commencement of such Proceeding to the insurers in
accordance with the procedures set forth in the respective policies.
The Company shall thereafter take all necessary or desirable action to
cause such insurers to pay, on behalf of the Indemnitee, all amounts
payable as a result of such Proceeding in accordance with the terms of
such policies.
(c) If the Company shall be obligated to pay the Expenses of
any Proceeding against the Indemnitee, the Company, if appropriate,
shall be entitled to assume the defense of such Proceeding, with
counsel approved by the Indemnitee, upon the delivery to the Indemnitee
of written notice of its election so to do. After delivery of such
notice, approval of such counsel by the Indemnitee and the retention of
such counsel by the Company, the Company will not be liable to the
Indemnitee under this Agreement for any fees of counsel subsequently
incurred by the Indemnitee with respect to the same Proceeding,
provided that: (i) the Indemnitee shall have the right to employ his
counsel in any such Proceeding at the Indemnitee's expense; and (ii) if
(A) the employment of counsel by the Indemnitee has been previously
authorized by the Company, (B) the Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company
and the Indemnitee in the conduct of any such defense or (C) the
Company shall not, in fact, have employed counsel to assume the defense
of such Proceeding, the fees and expenses of Indemnitee's counsel shall
be at the expense of the Company.
7. Determination of Right to Indemnification.
(a) To the extent the Indemnitee has been successful on the
merits or otherwise in defense of any Proceeding referred to in
Sections 3(a), 3(b), or 3(c) of this Agreement or in the defense of any
claim, issue or matter described therein, the Company shall indemnify
the Indemnitee against Expenses actually and reasonably incurred by
him/her in connection with the investigation, defense, or appeal
of such Proceeding.
- 5 -
(b) In the event that Section 7(a) is inapplicable, the
Company shall also indemnify the Indemnitee unless, and only to the
extent that, the Company shall prove by clear and convincing evidence
to a forum listed in Section 8(c) below that the Indemnitee has not met
the applicable standard of conduct required to entitle the Indemnitee
to such indemnification.
(c) The Indemnitee shall be entitled to select the forum in
which the validity of the Company's claim under Section 7(b) hereof
that the Indemnitee is not entitled to indemnification will be heard
from among the following:
(1) A quorum of the Board consisting of directors who
are not parties to the proceeding for which indemnification is
being sought;
(2) The shareholders of the Company;
(3) Legal counsel selected by the Indemnitee, and
reasonably approved by the Board, which counsel shall make
such determination in a written opinion; or
(4) A panel of three arbitrators, one of whom is
selected by the Company, another of whom is selected by the
Indemnitee and the last of whom is selected by the first two
arbitrators so selected.
(d) As soon as practicable, and in no event later than 30 days
after written notice of the Indemnitee's choice of forum pursuant to
Section 7(c) above, the Company shall, at its own expense, submit to
the selected forum in such manner as the Indemnitee or the Indemnitee's
counsel may reasonably request, its claim that the Indemnitee is not
entitled to indemnification; and the Company shall act in the utmost
good faith, to assure the Indemnitee a complete opportunity to defend
against such claim.
(e) If the forum listed in Section 7(c) hereof selected by
Indemnitee determines that Indemnitee is entitled to indemnification
with respect to a specific Proceeding, such determination shall be
final and binding on the Company. If the forum listed in Section 7(c)
hereof selected by Indemnitee determines that Indemnitee is not
entitled to indemnification with respect to a specific Proceeding, the
Indemnitee shall have the right to apply to the court in which that
Proceeding is or was pending or any other court of competent
jurisdiction, for the purpose of enforcing the Indemnitee's right to
indemnification pursuant to this Agreement.
(f) Notwithstanding any other provision in this Agreement to
the contrary, the Company shall indemnify the Indemnitee against all
Expenses incurred by the Indemnitee in connection with any Proceeding
under this Section 7 involving the Indemnitee and against all Expenses
incurred by the Indemnitee in connection with any other Proceeding
between the Company and the Indemnitee involving the interpretation or
enforcement of the rights of the Indemnitee under this Agreement unless
a court of competent jurisdiction
- 6 -
finds that each of the claims and/or defenses of the Indemnitee in any
such Proceeding was frivolous or made in bad faith.
8. Limitation of Actions and Release of Claims. No Proceeding shall be
brought and no cause of action shall be asserted by or on behalf of the Company
or any Subsidiary against the Indemnitee, Indemnitee's spouse, heirs, estate,
executors or administrators after the expiration of one year from the act or
omission of the Indemnitee upon which such Proceeding is based; however, in a
case where the Indemnitee fraudulently conceals the facts underlying such cause
of action, no Proceeding shall be brought and no cause of action shall be
asserted after the expiration of one year from the earlier of: (i) the date the
Company or any Subsidiary of the Company discovers such facts; or (ii) the date
the Company or any Subsidiary of the Company could have discovered such facts by
the exercise of reasonable diligence. Any claim or cause of action of the
Company or any Subsidiary of the Company, including claims predicated upon the
negligent act or omission of the Indemnitee, shall be extinguished and deemed
released unless asserted by filing of a legal action within such period. This
Section 8 shall not apply to any cause of action which has accrued on the date
hereof and of which the Indemnitee is aware on the date hereof, but as to which
the Company has no actual knowledge apart from the Indemnitee's knowledge.
9. Exceptions. Any other provisions herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance
expenses to the Indemnitee with respect to Proceedings or claims
initiated or brought voluntarily by the Indemnitee and not by way of
defense, except with respect to Proceedings brought to establish or
enforce a right to indemnification under this Agreement or any other
statute or law or otherwise as required under Section 317 but such
indemnification or advancement of Expenses may be provided by the
Company in specific cases if the Board of Directors finds it to be
appropriate; or
(b) Lack of Good Faith. To indemnify the Indemnitee for any
Expenses incurred by the Indemnitee with respect to any Proceeding
instituted by the Indemnitee to enforce or interpret this Agreement, if
a court of competent jurisdiction determines that each of the material
assertions made by the Indemnitee in such Proceeding was made in bad
faith or was frivolous; or
(c) Unauthorized Settlements. To indemnify the Indemnitee
under this Agreement for any amounts paid in settlement of a Proceeding
effected within seven calendar days after delivery by the Indemnitee
to the Company of the notice provided for in Section 6(a) hereof,
unless the Company consents to such settlement.
10. Non-exclusivity. The provisions for indemnification and advancement
of Expenses set forth in this Agreement shall not be deemed exclusive of any
other rights which the Indemnitee may have under any provision of law, the
Company's Articles of Incorporation or Bylaws, the vote of the Company's
shareholders or disinterested directors, other agreement, or
- 7 -
otherwise, both as to action in Indemnitee's official capacity and to action in
another capacity while occupying the position as an Agent of the Company, and
the Indemnitee's rights hereunder shall continue after the Indemnitee has
ceased acting as an Agent of the Company and shall inure to the benefit of the
heirs, executors and administrators of the Indemnitee.
11. Interpretation of Agreement. It is understood that the parties
hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to the Indemnitee to the fullest extent now or hereafter
permitted by law.
12. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(i) the validity, legality and enforceability of the remaining provisions of the
Agreement (including without limitation all portions of any paragraphs of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not themselves invalid, illegal or unenforceable) shall
not in any way be affected or impaired thereby; and (ii) to the fullest extent
possible, the provisions of this Agreement (including, without limitation, all
portions of any paragraph of this Agreement containing any such provision held
to be invalid, illegal or unenforceable, that are not themselves invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable and to give
effect to Section 11 hereof.
13. Modification and Waiver. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
14. Successors and Assigns. The terms of this Agreement shall bind, and
shall inure to the benefit of, the successors and assigns of the parties hereto.
15. Notice. All notices, requests, demand and other communications
under this Agreement shall be in writing and shall be deemed duly given: (i) if
delivered by hand and receipted for by the party addressee; or (ii) if mailed by
certified or registered mail with postage prepaid, on the third business day
after the mailing date. Address for notice to either party are as shown on the
signature pages of this Agreement, or as subsequently modified by written
notice.
16. Governing Law. This Agreement shall be governed exclusively by and
construed according to the laws of the State of California, as applied to
contracts between California residents entered into and to be performed entirely
within California.
17. Consent to Jurisdiction. The Company and the Indemnitee each hereby
irrevocably consent to the jurisdiction of the state and federal courts in the
State of California for all purposes in connection with any action or proceeding
which arises out of or relates to this Agreement and agree that any action
instituted under this Agreement shall be brought only in the state or federal
courts in the State of California.
- 8 -
IN WITNESS WHEREOF the parties hereto have entered into this indemnity
Agreement effective as of the date first above written.
THORATEC CORPORATION
By: /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: President and Chief Executive Officer
INDEMNITEE:
/s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
- 9 -
[THORATEC CORPORATION LOGO]
EMPLOYEE CONFIDENTIAL INFORMATION AND
INVENTIONS AGREEMENT
In partial consideration and as a condition of my employment or
continued employment with Thoratec Corporation, a California corporation (which
together with any parent, subsidiary, affiliate, or successor is hereinafter
referred to as the "Company" or "Thoratec"), and effective as of the date that
my employment with the Company first commenced, I hereby agree as follows:
1. NONCOMPETITION
During my employment with the Company, I will perform for the
Company such duties as it may designate from time to time and will devote my
full time and best efforts to the business of the Company and will not, without
the prior written approval of (i) an officer of the Company if I am not an
executive officer of the Company or (ii) the Board of Directors of the Company
if I am an executive officer of the Company, (a) engage in any other
professional employment or consulting, or (b) directly or indirectly participate
in or assist any business which is a current or potential supplier, customer, or
competitor of the Company.
2. THORATEC'S BUSINESS
The general line of business of the Company includes but is
not limited to:
(i) development, manufacture and sale of (1) medical
equipment, devices, apparatus and instrumentation;
(2) specialty polymer and chemicals and configured
polymer parts; and (3) high performance textiles and
textile products;
(ii) all equipment and items related to the above; and
(iii) all matters which are recorded in the Company's
records and notebooks.
3. CONFIDENTIALITY OBLIGATION
I will hold all Thoratec Confidential Information in
confidence and will not disclose, use, copy, publish, summarize, or remove from
Thoratec's premises any Confidential Information, except (a) as necessary to
carry out my assigned responsibilities as a Thoratec employee, and (b) after
termination of my employment, only as specifically authorized in writing by an
officer of Thoratec. "Confidential Information" is all information related to
any aspect of Thoratec's business which is either information not known by
actual or potential competitors of the Company or is proprietary information of
the Company, whether of a technical nature or otherwise. Confidential
Information includes computer programs, computer source code, inventions,
discoveries, ideas, designs, circuits, schematics, formulas, algorithms, trade
secrets,
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secret procedures, works of authorship, developmental or experimental work,
processes, techniques, methods, improvements, know-how, data, financial
information and forecasts product plans, marketing/ sales plans and strategies,
and customer lists.
4. INFORMATION OF OTHERS
I will safeguard and keep confidential the proprietary
information of customers, vendors, consultants, and other parties with which
Thoratec does business to the same extent as if it were Thoratec Confidential
Information. I will not, during my employment with the Company or otherwise, use
or disclose to the Company any confidential, trade secret, or other proprietary
information or material of any previous employer or other person, and I will not
bring onto the Company's premises any unpublished document or any other property
belonging to any former employer without the written consent of that former
employer.
5. THORATEC PROPERTY
All papers, records, data, notes, drawings, files, documents,
samples, devices, products, equipment, and other materials, including copies,
relating to Thoratec's business that I possess or create as a result of my
employment with Thoratec, whether or not confidential, are the sole and
exclusive property of Thoratec. In the event of the termination of my
employment, I will promptly deliver all such materials to Thoratec and will sign
and deliver to the Company the "Termination Certificate" attached hereto as
Exhibit A.
6. OWNERSHIP OF INVENTIONS
All computer programs, computer source code, inventions,
ideas, designs, circuits, schematics, formulas, algorithms, trade secrets, works
of authorship, developments, processes, techniques, improvements, and related
know-how which result from work performed by me, alone or with others, on behalf
of Thoratec or from access to Thoratec Confidential Information or property,
whether or not patentable or copyrightable, (collectively "Inventions") shall be
the property of Thoratec, and, to the extent permitted by law, shall be "works
made for hire." I hereby assign and agree to assign to Thoratec or its designee,
without further consideration, my entire right, title, and interest in and to
all Inventions, other than those described in Paragraph 7 of this Agreement,
including all rights to obtain, register, perfect, and enforce patents,
copyrights, and other intellectual property protection for Inventions. I will
disclose promptly and in writing to the individual designated by Thoratec or to
my immediate supervisor all Inventions which I have made or reduced to practice.
During my employment and for four years after, I will assist Thoratec (at its
expense) to obtain and enforce patents, copyrights, and other forms of
intellectual property protection on Inventions.
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7. EXCLUDED INVENTIONS
Attached is a list of all inventions, improvements, and
original works of authorship which I desire to exclude from this Agreement, each
of which has been made or reduced to practice by me prior to my employment by
Thoratec. If no list is attached to this Agreement, there are no inventions to
be excluded at the time of my signing of this Agreement. I understand that this
Agreement requires disclosure, but not assignment, of any invention that
qualifies under Section 2870 of the California Labor Code, which reads:
"Any provision in an employment agreement which provides that an
employee shall assign or offer to assign any of his or her rights in an
invention to his or her employer shall not apply to an invention that
the employee developed entirely on his or her own time without using
the employer's equipment, supplies, facilities, or trade secret
information except for those inventions that either:
(a) relate at the time of conception or reduction to practice of the
invention to the employer's business or actual or demonstrably
anticipated research or development of the employer; or
(b) result from any work performed by the employee for the employer."
8. PRIOR CONTRACTS
I represent that there are no other contracts to assign
inventions that are now in existence between any other person or entity and me.
I further represent that I have no other employments, consultancies, or
undertakings which would restrict or impair my performance of this Agreement.
9. NON-SOLICITATION
During the term of my employment by the Company, and for
twelve (12) months thereafter, I shall not, directly or indirectly, without the
prior written consent of the Company: (i) solicit or induce any employee of the
Company to leave the employ of the Company; (ii) hire for any purpose any
employee of the Company or any former employee who has left the employment of
the Company within six months of the date of termination of such employee's
employment with the Company; (iii) solicit or accept employment or be retained
by any party who, at any time during the term of my employment, was a client,
consultant, or joint venture partner of the Company if such entity is engaged in
any activity, business or enterprise that is competitive with any significant
part of the business conducted by the Company or its subsidiaries or affiliates
at the time of the termination of my employment or as contemplated to be
conducted by the Company at such time; or (iv) solicit or accept the business of
any client of the Company, in any manner which is competitive (directly or
indirectly) with the Company, its subsidiaries or affiliates or its joint
venture partners.
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10. AGREEMENTS WITH THE UNITED STATES GOVERNMENT AND OTHER THIRD
PARTIES
I acknowledge that the Company from time to time may have
agreements with other persons or with the United States Government or agencies
thereof which impose obligations or restrictions on the Company regarding
Inventions made during the course of work under such agreements or regarding the
confidential nature of such work. I agree to be bound by all such obligations or
restrictions and to take all action necessary to discharge the obligations of
the Company thereunder.
11. NO EMPLOYMENT AGREEMENT
I agree that unless specifically provided in another writing
signed by me and an officer of the Company, my employment by the Company is not
for a definite period of time. Rather, my employment relationship with the
Company is one of employment at will and my continued employment is not
obligatory by either myself or the Company.
12. MISCELLANEOUS
12.1 Governing Law
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California, excluding those laws that
direct the application of the laws of another jurisdiction.
12.2 Enforcement
If any provision of this Agreement shall be determined to
be invalid or unenforceable for any reason, it shall be adjusted rather than
voided, if possible, in order to achieve the intent of the parties to the extent
possible. In any event, all other provisions of this Agreement shall be deemed
valid, and enforceable to the full extent possible.
12.3 Injunctive Relief; Consent to Jurisdiction
I acknowledge and agree that damages will not be an
adequate remedy in the event of a breach of any of my obligations under this
Agreement. I therefore agree that the Company shall be entitled (without
limitation of any other rights or remedies otherwise available to the Company)
to obtain, without posting bond, specific performance and preliminary and
permanent injunction from any court of competent jurisdiction prohibiting the
continuance or recurrence of any breach of this Agreement. I hereby submit my-
self to the jurisdiction and venue of the courts of the State of California for
purposes of any such action. I further agree that service upon me in any such
action or proceeding may be made by first class mail, certified or registered,
to my address as last appearing on the records of the Company.
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12.4 Arbitration
I further agree that the Company, at its option, may
elect to submit any dispute or controversy arising out of this Agreement for
final settlement by arbitration conducted in Alameda County or San Francisco
County in accordance with the then existing rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrators shall be
specifically enforceable and may be entered in any court having jurisdiction
thereof.
12.5 Attorneys' Fees
If any party seeks to enforce its rights under this
Agreement, by legal proceedings or otherwise, the non-prevailing party shall pay
all costs and expenses of the prevailing party.
12.6 Binding Effect; Waiver
This Agreement shall be binding upon and shall inure to
the benefit of the successors, executors, administrators, heirs,
representatives, and assigns of the parties. The waiver by the Company of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach of the same or any other provision hereof.
12.7 Headings
The Section headings herein are intended for reference
and shall not by themselves determine the construction or interpretation of this
Agreement.
12.8 Entire Agreement; Modifications
This Employee Confidential Information and Inventions
Agreement contains the entire agreement between the Company and the undersigned
employee concerning the subject matter hereof and supersedes any and all prior
and contemporaneous negotiations, correspondence, understandings, and
agreements, whether oral or written, respecting that subject matter. All
modifications to this Agreement must be in writing and signed by the party
against whom enforcement of such modification is sought.
IN WITNESS WHEREOF, I have executed this document as of the
7th day of August, 2001.
/s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Employee
RECEIPT ACKNOWLEDGED:
THORATEC CORPORATION
By:
-----------------------
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SCHEDULE 7
(Excluded Inventions, Improvements, and
Original Works of Authorship)
Identifying Number
Title Date Or Brief Description
----- ---- --------------------
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EXHIBIT A
Thoratec Corporation
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I
failed to return, any papers, records, data, notes, drawings, files, documents,
samples, devices, products, equipment, and other materials, including
reproductions of any of the aforementioned items, belonging to Thoratec
Corporation, its subsidiaries, affiliates, successors, or assigns (together, the
"Company").
I further certify that I have complied with all the terms of the
Company's Confidential Information and Inventions Agreement signed by me,
including the reporting of any inventions and original works of authorship (as
defined therein) conceived or made by me (solely or jointly with others) covered
by that agreement.
I further agree that, in compliance with the Confidential Information
and Inventions Agreement, I will hold in confidence and will not disclose, use,
copy, publish, or summarize any Confidential Information (as defined in the
Company's Confidential Information and Inventions Agreement) of the Company or
of any of its customers, vendors, consultants, and other parties with which it
does business.
Date: ___________________
______________________________
Employee's Signature
______________________________
Type/Print Employee's Name
California Labor Code Section 2870. Application of provision providing that
employee shall assign or offer to assign rights in invention to employer.
(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in
an invention to his or her employer shall not apply to an invention
that the employee developed entirely on his or her own time without
using the employer's equipment, supplies, facilities, or trade secret
information except for those inventions that either:
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(1) Relate at the time of conception or reduction to practice of
the invention to the employer's business, or actual or
demonstrably anticipated research or development of the
employer; or
(2) Result from any work performed by the employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from
being required to be assigned under subdivision (a), the provision is
against the public policy of this state and is unenforceable.
Added Stats 1979 ch 1001 Section 1; Amended Stats 1986 ch 346 Section 1.
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