Exhibit 10.1
SEPARATION AGREEMENT AND
RELEASE
October 1, 2008
Dear Dan:
The purpose of this
letter agreement (the “Agreement”) is to confirm the
terms regarding your separation of employment with ABIOMED,
Inc. 1/
(
“ABIOMED” or the
“Company”). As more fully set forth below, ABIOMED
desires to provide you with Severance Pay and Benefits described
below in exchange for certain agreements by you.
1. Separation of Employment .
Your employment with ABIOMED shall terminate on October 1,
2008 (the “Separation Date”). You acknowledge that from
and after the Separation Date, you have no authority to, and shall
not, represent yourself as an employee or agent of the Company. The
Company will provide you with payment for all accrued and unused
vacation pay through the Separation Date in accordance with the
Company Vacation Policy (“Vacation Pay”). You and the
Company acknowledge and agree that the termination of your
employment is intended to constitute an “involuntary
termination” for purposes of Section 409A of the
Internal Revenue Code.
2. Severance Pay and Benefits
. In exchange for the mutual covenants set forth in this Agreement
and completion of the appropriate forms by you, ABIOMED agrees to
continue to pay you (“Severance Pay”), in accordance
with ABIOMED’s current payroll schedule, your semi-monthly
base salary ($9,850.07), less state and federal income and welfare
taxes and any other mandatory deductions under applicable laws,
from the first pay period following your execution of this
Agreement through March 31, 2009 (the “Severance
Period”). In addition, we will continue your participation in
ABIOMED’ medical and dental plans during the Severance
Period, (which includes your co-pay which shall be deducted from
your salary continuation) (“Benefits”). In the event
that you do not become employed by a third party or otherwise
covered under alternative medical and dental insurance plans during
the Severance Period, you will have the right to continue your
medical and dental insurance at the expiration of the Severance
Period pursuant to the provisions of the Consolidated Omnibus
Budget Reconciliation Act of 1985 (COBRA) at your own cost. The
“qualifying event” under COBRA shall be deemed to have
commenced on the Separation Date.
You acknowledge and agree that the
Severance Pay and Benefits exceed any notice pay that otherwise
might be due to you in Section 4(c) of the Employment,
Nondisclosure and Non-Competition Agreement (the
“NCA”), and that the Severance Pay and Benefits are not
otherwise due or owing to you under any ABIOMED policy or practice.
The Severance Pay and Benefits are not intended to, and shall not
be construed to constitute a severance plan, and shall confer no
benefit on anyone other than the parties hereto. You further
acknowledge that except for (i) the specific financial
consideration set forth in this Agreement, (ii) earned but
unpaid regular wages earned through the Separation Date, and
(iii) the Vacation Pay, you are not and shall not in the
future be entitled to any other compensation including, without
limitation, other wages, commissions, bonuses, vacation pay,
holiday pay or any other form of compensation or
benefit.
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For the purposes of this
Agreement, the parties agree that the term ABIOMED or ABIOMED, Inc.
is intended to include ABIOMED, Inc., and any other related
entities including any divisions, affiliates and subsidiaries, and
its and their respective officers, directors, employees, agents and
assigns.
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3. Confidentiality and Other
Related Obligations . You expressly acknowledge and agree to
the following:
(i) that you remain bound by the
terms of Sections 5, 6, 7, 9 and all other terms relating to the
protection and enforcement of the NCA, which is incorporated herein
and attached hereto as Exhibit A ;
(ii) that you immediately shall
return to ABIOMED all ABIOMED property (including without
limitation, keys, computer equipment, computer discs and software,
company files and documents, company credit cards, etc.) and
documents and any copies thereof (including, without limitation,
financial plans, management reports, suppliers and customer address
lists, customer lists, and other similar documents and
information), and that you will abide by any and all common law
and/or statutory obligations relating to protection and
non-disclosure of ABIOMED’ trade secrets and/or confidential
and proprietary documents and information;
(iii) that all information relating
in any way to this Agreement, including the terms and amount of
financial consideration provided for in this Agreement, shall be
held confidential by you and shall not be publicized or disclosed
to any person (other than an immediate family member, legal counsel
or financial advisor, provided that any such individual to whom
disclosure is made agrees to be bound by these confidentiality
obligations), business entity or government agency (except as
mandated by state or federal law);
(iv) that you will not make any
statements that are professionally or personally disparaging about,
or adverse to, the interests of ABIOMED (including its officers,
directors and employees) including, but not limited to, any
statements that disparage any person, product, service, finances,
financial condition, capability or any other aspect of the business
of ABIOMED, and that you will not engage in any conduct which is
intended to harm professionally or personally the reputation of
ABIOMED (including its officers, directors and employees);
and
(v) that the breach of any of the
foregoing covenants by you shall constitute a material breach of
this Agreement and shall relieve ABIOMED of any further obligations
hereunder and, in addition to any other legal or equitable remedy
available to ABIOMED, shall entitle ABIOMED to recover any
Severance Pay and Benefits already paid to you pursuant to
Section 2 of this Agreement.
4. Stock Options . Any
options or Restricted Stock that you hold pursuant to the
Company’s various stock incentive plans that are not vested
as of your termination date will expire on the Separation Date and
will terminate without further action on behalf of the Company.
Pursuant to the terms of your option agreements and any other
agreements that you may be subject to at the time, your right to
exercise those options that vested prior to your