EXHIBIT 10.3
Exhibit A
AMENDED AND RESTATED
THORATEC CORPORATION
RESTRICTED STOCK GRANT AGREEMENT
This Amended and Restated Thoratec Corporation Restricted Stock Grant Agreement
("Agreement") amends and restates the Restricted Stock Grant Agreement (the
"Existing Agreement") between Thoratec Corporation (the "Company") and M. Wayne
Boylston ("Consultant").
WHEREAS, Consultant was previously an employee of the Company, and in accordance
with his employment, he was granted 50,000 shares of Common Stock of the Company
(the "Restricted Shares") pursuant to the Company's 1997 Employee Stock Option
Plan, as amended (the "Plan"), and the Thoratec Corporation Restricted Stock
Grant Agreement, effective as of August 13, 2002 (the "Existing Agreement"); and
WHEREAS, Consultant has resigned from the Company effective December 17, 2004
prior to any of the restrictions on the Restricted Shares having lapsed or
otherwise accelerated in accordance with the Existing Agreement; and
WHEREAS, in accordance with the terms of the Existing Agreement, Consultant has
forfeited all rights and interest in and to the Restricted Shares; and
WHEREAS, the Company and Consultant have entered into a Consulting Services
Agreement of even date herewith (the "Consulting Services Agreement") for the
provision of certain "Services" defined therein; and
WHEREAS, as consideration for Consultant's performance of Services as defined in
the Consulting Services Agreement, the Company desires to permit the continued
vesting by Consultant in certain of the Restricted Shares subject to the terms
and conditions set forth herein.
NOW THEREFORE, the Existing Agreement is hereby amended and restated to read in
its entirety as follows:
1. FORFEITURE OF RESTRICTED SHARES AND GRANT OF SHARES. Consultant
hereby agrees to his irrevocable forfeiture of 25,000 Restricted Shares
granted pursuant to the Existing Agreement. Consultant shall retain
25,000 Restricted Shares, subject to the vesting and other provisions
of this Agreement. This Agreement supersedes, in all respects, the
Existing Agreement, which shall no longer have any legal effect
whatsoever.
2. FORFEITURE AND TRANSFER RESTRICTIONS.
a. Restrictions.
(i) If the Consulting Agreement is terminated for the
reasons set forth in Section 4(a)(i) or 4(a)(iv) thereof, or as the
result of the death or disability of Consultant, all
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Restricted Shares as to which restrictions set forth herein have not
then lapsed pursuant to Section 2(b) or Section 3(a) hereof will be
forfeited by Consultant and will return to the Company (the
"Forfeiture"). Consultant will not be permitted to sell, assign, pledge
or otherwise encumber any Restricted Shares until there is no longer a
possibility of Forfeiture with respect thereto (such restriction,
together with the potential Forfeiture, referred to as the
"Restrictions").
(ii) If the Consulting Agreement is terminated for
the reasons set forth in Section 4(a)(ii), 4(a)(iii) or 4(a)(v)
thereof, the Restrictions will lapse with respect to all remaining
Restricted Shares as to which restrictions set forth herein have not
then lapsed.
b. Lapse of Restrictions. Except as otherwise provided in
Section 2(a)(ii) or Section 3 hereof, the Restrictions will lapse with
respect to 8,333 Restricted Shares on January 1, 2006, with respect to
8,333 Restricted Shares on January 1, 2007 and with respect to 8,334
Restricted Shares on January 1, 2008, provided that on each such
lapsing date Consultant's services to the Company pursuant to the
Consulting Agreement are continuing.
c. Rights to Surrendered Shares. If any Restricted Shares are
Forfeited as provided herein, such shares will be immediately
surrendered to the Company, and Consultant will have no further rights
with respect to such shares.
3. CHANGE OF CONTROL.
a. Change of Control. Upon a Change of Control Transaction in
which shares of the Company's common stock are (or are deemed to be)
converted into the capital stock of a third party entity (the
"Converted Shares"), then all of the Restricted Shares shall be
converted into the Converted Shares on the same basis as all other
Company common stock; provided, however, that the Restrictions shall
remain in effect and be applicable to the pro-rata number of Converted
Shares on the same terms set forth herein. As used herein, a "Change of
Control Transaction" shall mean a merger, consolidation, reorganization
or similar transaction in which holders of the Company's stock hold,
after the consummation thereof, less than a majority of the total
outstanding voting shares of the other party to such transaction; or a
sale by the Company of all or substantially all of its assets in any
one or series of related transactions to a third party.
b. Reclassification, Merger, etc. This Agreement will not
affect the right of the Company to engage in any Change of Control
Transaction (as defined above), or to adjust, reclassify, reorganize or
otherwise change its capital or business structure, dissolve, liquidate
or sell or transfer all or any part of its business or assets.
4. RIGHTS AS A SHAREHOLDER; CASH DIVIDENDS. Consultant will have full
rights as a shareholder with respect to the Restricted Shares, whether
or not the Restrictions have lapsed with respect to such shares, to the
extent that the relevant Restricted Shares have not been Forfeited as
provided herein, including without limitation the right to vote the
Restricted Shares and to receive any dividends paid on the Restricted
Shares.
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5. STOCK DIVIDENDS AND RELATED MATTERS. Any new, substituted or
additional securities or other property (including money paid other
than as a regular cash dividend) which Consultant may have the right to
receive, by reason of any stock dividend, stock split,
recapitalization, combination of shares, exchange of shares or other
change affecting the outstanding common stock, as a class, without the
Company's receipt of consideration, with respect to any Restricted
Shares which remain subject to the Restrictions, will be issued subject
to the same Restrictions applicable to any Restricted Shares which
remain subject to the Restrictions, with any securities of the Company
ceasing to be Restricted Shares on a pro rata basis as to thirty three
and one-third percent (33 1/3%) of such additional securities on each
of January 1, 2006, January 1, 2007 and January 1, 2008, respectively,
under the conditions set forth in Section 2(b) hereof.
6. CERTIFICATE; LEGENDS.
a. Legend. All certificates representing the Restricted Shares
will bear the following legend:
i. "THE SECURITIES REPRESENTED HEREBY MAY BE
SUBJECT TO FORFEITURE TO THE COMPANY
PURSUANT TO THE PROVISIONS OF AN AGREEMENT
BETWEEN THE COMPANY AND THE ORIGINAL
PURCHASER OF SUCH SECURITIES, SHOULD THE
PERSON INITIALLY ISSUED THESE SECURITIES
CEASE TO BE INVOLVED WITH THE COMPANY OR ANY
AFFILIATE THEREOF, AND SUCH SECURITIES MAY
NOT BE SOLD OR OTHERWISE TRANSFERRED IF SUCH
SECURITIES ARE SUBJECT TO SUCH RISK OF
FORFEITURE.
ii. THE HOLDER OF THESE SECURITIES MAY BE AN
AFFILIATE OF THE ISSUER HEREOF WITHIN THE
MEANING OF PARAGRAPH (A)(1) OF RULE 144
PROMULGATED UNDER THE SECURITIES ACT OF
1933, AS AMENDED."
b. Lapse of Restrictions. One or more certificates
representing the Restricted Shares will be issued in Consultant's name
and held by the Secretary of the Company until all restrictions on the
Restricted Shares have lapsed. When restrictions have lapsed on the
Restricted Shares, certificates for such Restricted Shares will be
delivered to Consultant upon his request.
7. TAX CONSEQUENCES.
a. Tax Advisor. Consultant acknowledges that the tax
consequences associated with the Restricted Shares and this Agreement
are complex and depend upon Consultant's particular circumstances and
that the Company has urged Consultant to consult a tax advisor. By
executing this Agreement, Consultant acknowledges that Consultant has
retained, or has had the opportunity to retain, his own advisor(s) to
provide tax advice to him as to such matters and as to this Agreement,
and neither the Company nor any of its employees, representatives or
advisors has given Consultant any tax advice regarding the Restricted
Shares or this Agreement and Consultant has not relied on any
representations of the Company or any of its employees, representatives
or advisors on that subject.
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b. Withholding Tax. Consultant is an independent contractor
and not an employee of the Company. Therefore, Consultant is
responsible for the payment of any withholding or employment taxes
which, in the good-faith judgment of the Company, result from the
purchase of the Restricted Shares or the lapse of Restrictions thereon.
c. No Section 83(b) Election. Consultant represents and
warrants to the Company that he has not made an election under Section
83(b) of the Internal Revenue Code with respect to the Restricted
Shares, and agrees that he will not make such an election with respect
to the Restricted Shares.
8. SUCCESSORS AND ASSIGNS. Except to the extent otherwise provided
herein, the provisions of this Agreement will inure to the benefit
of, and be binding upon, the Company and its successors and
assigns and Consultant, Consultant's assigns and the legal
representatives, heirs, beneficiaries, executors and
administrators and legatees of Consultant's estate.
9. NOTICES. Any notice required or permitted to be given or made
under this Agreement by either of the parties to the other will be
in writing, delivered personally or by facsimile (and promptly
confirmed by personal delivery, first class mail or courier),
first class mail or courier, postage prepaid (where applicable),
addressed to such other party at its relevant address, which for
the Company will be the address and facsimile number of its
principal office, and for Consultant will be the address and
facsimile number set forth below Consultant's signature on this
Agreement, or to such other address as the addressee has last
furnished in writing to the addressor and will be effective and
deemed given under this Agreement on the earliest of: (a) the date
of personal delivery; (b) the date of delivery by facsimile; or
(c) the next business day after deposit with a
nationally-recognized courier or overnight service, including
FedEx or Express Mail.
10. NO COMMITMENT. Nothing in this Agreement constitutes an agreement
that Consultant will be retained by the Company for any term.
11. GOVERNING LAW; VENUE. 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. 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.
Interpretation, performance and enforcement of this Agreement will
be governed by the laws of the State of California without regard
to its conflict-of-laws rules.
12. COUNTERPARTS. This Agreement may be executed by facsimile and in
two counterparts, each of which will be deemed an original, and
both of which together will constitute one and the same
instrument.
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THORATEC CORPORATION
By: /s/ D. Keith Grossman
_______________________
Name: D. Keith Grossman
Title: Chief Executive Officer and President
/s/ M. Wayne Boylston
______________________
M. WAYNE BOYLSTON
Address: *
*
Telephone Number:________________
Facsimile Number:________________
I, as the Consultant's spouse, also accept and agree
to be bound by the terms and conditions of this
Agreement.
i.____________________________________________
Signature
Printed name:______________________________
ii. Date signed:___________, 200__
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