Exhibit 10.20
EMPLOYMENT, NONDISCLOSURE
AND
NON COMPETITION
AGREEMENT
AGREEMENT made as of the
day of
by and between ABIOMED, Inc., a Delaware Corporation with offices
at 22 Cherry Hill Park, Danvers, Massachusetts
(“ABIOMED”), and _____________ (the
“Employee”) of _______________________ . For
purposes of this Agreement, unless the context otherwise requires,
the term ABIOMED, shall include ABIOMED and each of its
subsidiaries.
RECITALS
The Employee desires to be employed
by ABIOMED and ABIOMED desires to employ the Employee in accordance
with the terms and conditions set forth in this
Agreement.
NOW, THEREFORE,
in consideration of the mutual
promises contained herein, and other valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Employment .
The Employee shall initially be
employed by ABIOMED as their ______________. ABIOMED
reserves the right, in its sole discretion, to change the
Employee’s title and responsibilities at any time.
2. Compensation
. The Employee’s salary shall
be $__________ semi-monthly, subject to periodic review and
adjustment by ABIOMED in its sole discretion. Payment of any
bonuses will be at the sole discretion of ABIOMED. ABIOMED
maintains certain benefit plans and programs for its employees. The
Employee’s eligibility for and participation in these plans
are subject to the terms and conditions of each plan. ABIOMED
reserves the right to modify or terminate any plan or program at
any time.
3. Loyalty and Best
Efforts . The
Employee agrees that he/she shall be a full-time employee, devoting
his/her entire time, undivided loyalty and best efforts to the
business of ABIOMED. The Employee shall not during the term of
his/her employment be engaged in any other occupation, professional
or business activity. As a representative of ABIOMED, the Employee
further agrees to always conduct himself in accordance with the
highest ethical and moral standards during both working and
non-working hours. Attached to this Agreement as Appendix A
is ABIOMED’s “Conflicts of Interest Policy”. By
executing this Agreement, the Employee represents and warrants that
he/she has reviewed carefully the Policy and Guidelines and agrees
to abide by the Policy and Guidelines, as they may be updated and
modified by ABIOMED from time to time.
4. Term and Termination
. (a) ABIOMED may
terminate the Employee’s employment for cause at any time
without prior notice if the Employee shall; (i) commit fraud,
theft, misappropriation, embezzlement, misrepresentation or the
like, or (ii) materially violate any provisions of this
Agreement, or (iii) be insubordinate or grossly incompetent in
the course of his/her employment; or (iv) violate any
provisions of ABIOMED’s Guidelines of Company Principles and
Practices or Conflicts of Interest Policy, or any other published
ABIOMED policies or guidelines, as they may be amended from time to
time.
(b) ABIOMED may terminate
Employee’s employment without cause at any time and without
any liability beyond regular compensation through the day of
termination during the Employee’s first six months of
employment with ABIOMED.
(c) ABIOMED may terminate
Employee’s employment without cause after six months of
employment upon twenty-eight (28) days written notice to the
Employee. In such event, the Employee, if requested by ABIOMED,
shall continue to render his/her services and shall be paid his/her
regular compensation up to the date of termination without any
further liability to ABIOMED.
(d) The Employee may resign his/her
employment with ABIOMED without cause at any time upon twenty-eight
(28) days written notice to ABIOMED. In such event, the
Employee shall continue to render his/her services and shall be
paid his/her regular compensation up to the date of
termination.
(e) The Employee’s employment
with ABIOMED shall terminate immediately upon the Employee’s
death.
5. Protection of Proprietary
Information . (a) ABIOMED has developed or acquired
materials and information (whether or not reduced to writing,
patentable or protectable by copyright) relating to ABIOMED’s
operating procedures, products, methods, service techniques,
engineering and manufacturing data machines, devices, apparatus,
“know-how”, formulae, software, processes, plans,
designs, specifications, trade secrets, company data regarding
costs, profits, markets and sales, customer lists, plans for
present and future research, development and marketing, and other
proprietary information not available to the public (collectively
“Proprietary Information”) which gives it a special
competence in its various fields of endeavor, all of which have
been acquired at considerable expense to ABIOMED.
(b) The Employee recognizes that
ABIOMED is engaged in a continuous program of research and
development of such Proprietary Information. The Employee
understands that as part of his/her employment he/she is expected
to make contributions of value to ABIOMED, including the
development of Proprietary Information. He acknowledges that
his/her employment creates a relationship of confidence and trust
between him/herself and ABIOMED with respect to information of a
confidential nature which is discovered, made known to, or learned
by him/her during the period of his/her employment, including
Proprietary Information.
(c) The Employee agrees to promptly
disclose to ABIOMED all inventions conceived or put to practice
while employed at ABIOMED, regardless of whether the development of
the invention was funded by ABIOMED or by an external entity,
government or private.
(d) The Employee will not without
the express authorization from an authorized ABIOMED officer,
during or after the term of his/her employment, disclose any
Proprietary Information, or anything relating to it, to any person
other than authorized ABIOMED personnel. Nor shall the Employee use
any such information for his/her personal benefit or disclose or
use for his/her personal benefit any information furnished by a
third party to ABIOMED in confidence.
(e) The Employee agrees that in the
event of the termination of his/her employment for any reason,
he/she will deliver to ABIOMED and shall not take with him/her, all
documents and materials of any nature pertaining to any Proprietary
Information. Employee shall execute a certificate in the form of
Appendix B , at the time of termination of employment
confirming compliance with the requirements of this Section and
other provisions of this Agreement relating to the treatment of
Proprietary Information.
6. Assignment of Proprietary
Information . (a) The Employee agrees that he/she will
promptly disclose to ABIOMED, or its assigns, all discoveries,
processes, software, formulae, data, know-how and techniques,
whether or not patentable or protectable by copyright, made or
conceived, first reduced to practice, or learned by him/her, either
alone or jointly with others, during the period of his/her
employment which (i) relate to or are useful in the business
of ABIOMED, or (ii) are conceived, made or worked on at the
expense of, or during the Employee’s normal working hours
for, ABIOMED or using any resources or materials of ABIOMED, or
(iii) arise out of tasks assigned to him/her by ABIOMED, or
(iv) are within the scope of his/her employment by ABIOMED
(collectively, “Proprietary Inventions”).
(b) All Proprietary Inventions shall
be the sole property of ABIOMED and its assigns, and ABIOMED and
its assigns shall be the sole owner of all patents, copyrights and
other rights in connection therewith. In consideration of his/her
employment by ABIOMED and regardless of any change in the
Employee’s salary or the nature of the Employee’s
employment, the Employee hereby assigns to ABIOMED, or its assigns,
the Employee’s entire right, title and interest in and to any
and all Proprietary Inventions.
(c) The Employee, at the expense of
ABIOMED, agrees to assist ABIOMED and its assigns in every proper
way to obtain and enforce patents, copyrights and other
intellectual property rights on Proprietary Inventions in any and
all countries. To that end, the employee agrees to execute all
papers, and perform all acts necessary to make this Agreement
effective as to any particular Proprietary Inventions, application
for letters patent, and other rights and interests of ABIOMED or
its assigns, including the giving of testimony without expense to
the Employee and without further compensation except as provided
for in accordance with ABIOMED’s “Patent Awards
Policy” as it may be amended from time to time, a copy of
which is attached hereto as Appendix C and made a part of
this Agreement by reference. The obligations
of the Employee under this paragraph
(c) shall continue beyond the termination of his/her
employment with ABIOMED.
(d) As a matter of record, and in
order to avoid disputes over the application of Sections 5 and 6,
the Employee has attached to this Agreement, as Appendix D ,
a complete list of all inventions made, conceived, or first reduced
to practice by Employee, alone or jointly with others, prior to
his/her employment with ABIOMED, that are not described in a
publication or patent application in existence on the date of this
Agreement, and that the Employee desires, and ABIOMED agrees to
exclude from the effect of this Agreement. If no such list is
attached to this Agreement, he/she represents that he/she has no
such inventions and improvements at the time of signing this
Agreement.
(e) If any application for any
United States or foreign patent, copyright or other intellectual
property rights related to or useful in the business of ABIOMED
shall be filed by or for the Employee within a period of one
(1) year after the termination of his/her employment, the
subject matter covered thereby shall be presumed to have been
conceived during his employment with ABIOMED.
7. Covenant Not to Compete
. (a)
Noncompetition . The Employee recognizes that ABIOMED is
engaged in the research, development, manufacturing and marketing
of proprietary products in the United States and throughout the
world, and that it is of utmost importance to ABIOMED to maintain
the confidentiality of its Proprietary Information and preserve the
good-will of its business. In order to safeguard that Proprietary
Information and good-will, the Employee understands that it is a
condition of his/her employment not to compete with ABIOMED, in the
United States or any other country, for a period of time following
the termination of his/her employment, as set forth in further
detail below.
(b) The Employee agrees that for a
period of two years following the termination of his/her
employment, he/she will not directly or indirectly, for his/her own
account or for any other person, as agent, employee, officer,
director, trustee, consultant, owner, partner, or shareholder, or
any other capacity:
(i) hire or attempt to hire or
assist any other person in hiring or attempting to hire any
employee of ABIOMED; or
(ii) encourage or assist any other
person in encouraging any director, officer, employee, agent,
consultant or any other person affiliated with ABIOMED to terminate
or alter his/her or its relationship with ABIOMED; or
(iii) encourage or assist any other
person in encouraging any customer or supplier of ABIOMED to
terminate or alter its relationship with ABIOMED; or
(iv) Sell or market or assist any
other person in selling or marketing any product or service that
competes, directly or indirectly with any product or service
manufactured, sold or under development by ABIOMED at the time the
Employee’s employment with ABIOMED is terminated;
or
(v) research, develop or manufacture
or assist any other person in researching, developing or
manufacturing any product or service that competes with any product
or service conceived, manufactured, sold or under development by
ABIOMED at the time the Employee’s employment with ABIOMED is
terminated.
(c) In order to assure that the
Employee does not breach any of the foregoing provisions, the
Employee agrees that for a period of two years following the
termination of his/her Employment he will not accept employment
with, advise, provide consulting services to or acquire any
interest in (other than an investment interest of less than 5% of
the total outstanding shares of a publicly traded company) any
business that directly or indirectly competes with any product or
service conceived, manufactured, sold or under development by
ABIOMED without first obtaining the written consent of ABIOMED.
ABI
