Exhibit 10.3


 


WORLD HEART CORPORATION


 


CHANGE OF CONTROL AND SEVERANCE AGREEMENT


 


This Change of Control and Severance
Agreement (the “Agreement”) is dated as of September 8, 2009, by
and between Morgan R. Brown (“Employee”) and World Heart Corporation (the
“Company”).  This Agreement is
intended to provide Employee with certain benefits described herein upon the
occurrence of specific events.


 


RECITALS


 


A.                                    It is expected
that another company may from time to time consider the possibility of
acquiring the Company or that a change in control may otherwise occur, with or
without the approval of the Company’s Board of Directors. The Board of
Directors recognizes that such consideration can be a distraction to Employee
and can cause Employee to consider alternative employment opportunities.  The Board of Directors has determined that it
is in the best interests of the Company and its stockholders to assure that the
Company will have the continued dedication and objectivity of the Employee,
notwithstanding the possibility, threat or occurrence of a Change of Control
(as defined below) of the Company.


 


B.                                    The
Company’s Board of Directors believes it is in the best interests of the
Company and its stockholders to retain Employee and provide incentives to
Employee to continue in the service of the Company.


 


C.                                    The Board of
Directors further believes that it is imperative to provide Employee with
certain benefits upon termination of Employee’s employment, in connection with
a Change of Control and otherwise, which benefits are intended to provide
Employee with financial security and provide sufficient income and
encouragement to Employee to remain with the Company, notwithstanding the
possibility of a Change of Control.


 


D.                                    To accomplish
the foregoing objectives, the Board of Directors has directed the Company, upon
execution of this Agreement by Employee, to agree to the terms provided in this
Agreement.


 


Now therefore, in consideration of the mutual
promises, covenants and agreements contained herein, and in consideration of
the continuing employment of Employee by the Company, the parties hereto agree
as follows:


 


1.                                      At-Will Employment.  The Company and Employee acknowledge that
Employee’s employment is and shall continue to be at-will, as defined under
applicable law, and that Employee’s employment with the Company may be
terminated by either party at any time for any or no reason.  If Employee’s employment terminates for any
reason, Employee shall not be entitled to any payments, benefits, award or
compensation other than as provided in this Agreement.  The terms of this Agreement shall terminate
upon the earlier of (i) the date on which Employee ceases to be employed
as an officer of the Company, other than as a result of an


 

















 


involuntary termination by the
Company without Cause (as defined below) or Employee’s resignation for Good
Reason (as defined below); or (ii) the date that all obligations of the
parties hereunder have been satisfied.  A
termination of the terms of this Agreement pursuant to the preceding sentence
shall be effective for all purposes, except that such termination shall not
affect the payment or provision of compensation or benefits on account of a
termination of employment occurring prior to the termination of the terms of
this Agreement.  The rights and duties
created by this Section 1 may not be modified in any way except by a
written agreement executed by an officer of the Company upon direction from the
Board of Directors.


 


2.                                      Benefits  Upon Termination of Employment; Change of Control Benefits.


 


(a)                                 Termination In Connection with or Following a Change
of Control.  In the event
that Employee’s employment is terminated as a result of an involuntary
termination other than for Cause (and other than as a result of death or
disability as disability is defined for purposes of the Company’s long-term
disability policies) or if Employee resigns for Good Reason, as of, immediately
prior to or at any time within twelve (12) months following the effective date
of a Change of Control, then Employee will be entitled to receive severance
benefits as follows: (i) a lump sum severance payment equal to nine (9) months
of the base salary which Employee was receiving immediately prior to the Change
of Control plus 75% of Employee’s target annual bonus as in effect immediately
prior to the Change of Control, which shall be paid on the date that is sixty
(60) days after the effective date of the termination, (ii) continuation
of the health insurance benefits provided to Employee for Employee and Employee’s
eligible dependents immediately prior to the Change of Control at Company
expense pursuant to the terms of the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended (“COBRA”) or other applicable law until the
earlier of the date nine (9) months after the effective date of the
termination or the date upon which Employee is no longer eligible for such
COBRA or other benefits under applicable law, and (iii) each stock option
to purchase the Company’s common shares (“Common Stock”) and all shares
of restricted stock granted to Employee over the course of Employee’s
employment with the Company and held by Employee on the date of termination of
employment shall become immediately vested as to 75% of each of the then
unvested options and shares.  In
addition, Employee will receive payment(s) for all accrued and unpaid
salary, bonuses and PTO as of the date of Employee’s termination of employment.


 


(b)                                 Termination Not In Connection with or Following a
Change of Control.  In the
event that Employee’s employment is terminated as a result of an involuntary
termination other than for Cause (and other than as a result of death or
disability as disability is defined for purposes of the Company’s long-term
disability policies) or if Employee resigns for Good Reason at any time other
than as of, immediately prior to, or within twelve (12) months following, the
effective date of a Change of Control, then Employee will be entitled to
receive severance benefits as follows: (i) severance payments during the
period from the date of Employee’s termination until the date nine (9) months
after the effective date of the termination (the “Benefit Period”) equal
to the base salary which Employee was receiving immediately prior to the
termination date, which shall be paid during the Benefit Period in equal
installments in accordance with the Company’s standard payroll practices,
except that any and all payments that would otherwise have been made before the
sixtieth (60th) day after the date of Employee’s


 


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effective date of termination
(the “First Payment Date”) shall be made on the First Payment Date, (ii) continuation
of the health insurance benefits provided to Employee and Employee’s eligible
dependents immediately prior to the termination date at Company expense
pursuant to COBRA or other applicable law until the earlier of the date nine (9) months
after the effective date of the termination or the date upon which Employee is
no longer eligible for such COBRA or other benefits under applicable law, and (iii) if
Employee holds any outstanding options that have not reached the option’s
one-year cliff vesting requirement, the Company will waive the one-year cliff
vesting requirement of each such option and Employee will be credited with vesting
on the Employee’s termination date equal to 1/48th of the option shares multiplied by each full
month of Employee’s employment since the vesting commencement date of the
option.  In addition, Employee will
receive payment(s) for all accrued and unpaid salary, bonuses and PTO as
of the date of Employee’s termination of employment.  Notwithstanding the foregoing, no severance
benefits shall be paid under this Section 2(b) if at or prior to the
time of the Employee’s termination or if in connection with the Employee’s
termination, the Company (i) is in a bankruptcy proceeding, whether
voluntary or involuntary, (ii) is in the process of liquidating or
dissolving, whether voluntary or involuntary, or (iii) the Board of
Directors has approved the liquidation, dissolution or winding down of the
Company.


 


(c)                                  Termination for Cause or Voluntary Resignation other
than for Good Reason.  If
Employee’s employment is terminated for Cause at any time or if Employee
voluntarily resigns from the Company at any time for any reason other than Good
Reason, then Employee shall not be entitled to receive payment of any severance
benefits under this Agreement.  Employee
will receive payment(s) for all accrued and unpaid salary and PTO as of
the date of Employee’s termination of employment and Employee’s benefits will
be continued under the Company’s then existing benefit plans and policies in
accordance with such plans and policies in effect on the date of termination
and in accordance with applicable law.


 


3.                                           Definition of Terms.  The following terms referred to in this
Agreement shall have the following meanings:


 


(a)                                 Change of Control.  “Change of Control” shall mean the
occurrence, in a single transaction or in a series of related transactions, of
any one or more of the following events: 
(i)  a sale or other disposition of all or
substantially all, as determined by the Board of Directors of the Company in
its sole discretion, of the consolidated assets of the Company and its
subsidiaries; (ii) a
merger, consolidation or similar transaction following which the Company is not
the surviving corporation; or (iii) a
merger, consolidation or similar transaction following which the Company is the
surviving corporation but the shares of the Company’s Common Stock outstanding
immediately preceding the merger, consolidation or similar transaction are
converted or exchanged by virtue of the merger, consolidation or similar
transaction into other property, whether in the form of securities, cash or
otherwise.  Notwithstanding the foregoing, a Change of Control shall not be deemed to
occur (A) on account of the acquisition of securities of the Company by an
investor, any affiliate thereof or any other person that acquires the Company’s
securities in a transaction or series of related transactions the primary
purpose of which is to obtain financing for the Company through the issuance of
equity securities or (B) on account of a sale of assets, merger or
other transaction effected exclusively for the purpose of changing the domicile
of the Company.


 


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(b)                                 Cause.  “Cause”
shall mean the occurrence of any one or more of the following: (i) Employee’s
conviction of any felony or crime involving fraud, dishonesty or moral
turpitude; (ii) Employee’s participation in a fraud or act of dishonesty
against the Company, an affiliate of the Company or any successor to the
Company that results in material harm to the business of the Company, an
affiliate of the Company or any successor to the Company; or (iii) Employee’s
intentional, material violation of any contract between the Company, an
affiliate of the Company or any successor to the Company and Employee or any
statutory duty Employee owes to the Company, an affiliate of the Company or any
successor to the Company that Employee does not correct within thirty (30) days
after written notice thereof has been provided to Employee.


 


(c)                                  Good Reason.  “Good
Reason” for Employee’s resignation of Employee’s employment will exist
following the occurrence of any of the following without Employee’s
consent:  (i) a material diminution
of Employee’s authority or responsibilities as Chief Financial Officer; (ii) a
material decrease of Employee’s compensation or benefits, unless the decrease
is proportional to an across-the-board decrease affecting all senior
executives; (iii) a material breach by the Company of any material
provision of this Agreement or any written employment agreement with Employee;
or (iv) an involuntary relocation of Employee’s principal work location
for the Company outside of Salt Lake City, Utah.  Before any resignation for Good Reason,
Employee will provide the Company with specific written notice about the
circumstances allegedly constituting Good Reason within ninety (90) days after
the occurrence of the circumstances, and the Company will have thirty (30) days
to cure, if such conduct is reasonably susceptible to being cured.  A resignation for Good Reason must take place
within sixty (60) days after the end of the cure period.


 


4.                                      Parachute Payments.  In
the event that the acceleration and severance benefits provided for in this
Agreement (A) constitute “parachute payments” within the meaning of Section 280G
of the Internal Revenue Code of 1986, as amended (the “Code”) and (B) but
for this paragraph, would be subject to the excise tax imposed by Section 4999
of the Code, then Employee’s benefits hereunder shall be payable either: (X) in
full, or (Y) as to such lesser amount which would result in no portion of
such severance benefits being subject to excise tax under Section 4999 of
the Code, whichever of the foregoing amounts, taking into account the
applicable federal, state and local income taxes and the excise tax imposed by Section 4999,
results in the receipt by Employee on an after-tax basis, of the greatest
amount of benefits hereunder, notwithstanding that all or some portion of such
benefits may be taxable under Section 4999 of the Code.  Any determination required under this
paragraph shall be made in writing by the public accountants designated by the
Company (the “Accountants”), whose determination shall be conclusive and
binding upon Employee and the Company for all purposes.  For purposes of making the calculations
required by this paragraph, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good
faith interpretations concerning the application of Section 280G and 4999
of the Code.  The Company and Employee
shall furnish to the Accountants such information and documents as the
Accountants may reasonably request in order to make a determination under this
paragraph.  The Company shall bear all
costs the Accountants may reasonably incur in connection with any calculations
contemplated by this paragraph.  In the
event that a reduction in payments and/or benefits is required under this
section 4, such reduction shall occur in the


 


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following
order: (1) reduction of cash payments; (2) reduction of acceleration
of vesting of options and shares; and (3) reduction of other benefits paid
to Employee. If the acceleration of vesting of options and shares is to be
reduced, such acceleration of vesting shall be cancelled in the reverse order
of the highest price option grant or highest purchase price per share down to
the lowest priced option grant or lowest purchase price per share.


 


5.                                      Limitations and Conditions on Benefits


 


(a)                                 Income and Employment
Taxes.  Employee agrees that
Employee shall be responsible for any applicable taxes of any nature (including
any penalties or interest that may apply to such taxes) that the Company
reasonably determines apply to any payment made hereunder, that Employee’s
receipt of any benefit hereunder is conditioned on Employee’s satisfaction of
any applicable withholding or similar obligations that apply to such benefit,
and that any cash payment owed hereunder will be reduced to satisfy any such
withholding or similar obligations that may apply.


 


(b)                                 Code
Section 409A.  All severance
benefits to be paid upon a termination of employment under this Agreement may
be made only upon a  “separation of
service” within the meaning of Section 409A of the Code and the Department
of Treasury regulations and other guidance promulgated thereunder (a “Separation
from Service”).  Notwithstanding any
provision to the contrary in this Agreement, if Employee is deemed by the
Company at the time of Employee’s Separation from Service to be a “specified
employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the
extent delayed commencement of any portion of the benefits to which Employee is
entitled under this Agreement is required in order to avoid a prohibited
distribution under Section 409A(a)(2)(B)(i) of the Code, such portion
of Employee’s benefits will not be provided to Employee prior to the earlier of
(i) the expiration of the six-month period measured from the date of the
Employee’s Separation from Service or (ii) the date of Employee’s
death.  Upon the first business day
following the expiration of the applicable Code Section 409A(a)(2)(B)(i) period,
all payments deferred pursuant to this Section 5(b) will be paid in a
lump sum to Employee (or Employee’s estate or beneficiaries), and any remaining
payments due under the Agreement will be paid as otherwise provided
herein.  For purposes of Section 409A
of the Code, Employee’s right to receive the payments of compensation pursuant
to the Agreement will be treated as a right to receive a series of separate
payments and accordingly, each payment will at all times be considered a
separate and distinct payment.  This
paragraph is intended to comply with the requirements of Section 409A of
the Code so that none of the severance payments and benefits to be provided
hereunder will be subject to the additional tax imposed under Section 409A
of the Code and any ambiguities herein will be interpreted to so comply.  Employee and the Company agree to work
together in good faith to consider amendments to this Agreement and to take
such reasonable actions which are necessary, appropriate or desirable to avoid
imposition of any additional tax or income recognition prior to actual payment
to Employee under Section 409A of the Code.


 


(c)                                  Release Prior to Receipt of Benefits.  The Company’s obligation to make the payments
and provide the benefits hereunder shall be conditioned upon (i) Employee’s  execution and delivery to
the Company of a release of all claims that Employee then may have, in standard
form and content, within fifty (50) days following Employee’s Separation from


 


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Service and (ii) such release shall not have been revoked by
Employee within any period permitted under applicable law.


 


6.                                      Conflicts.  Employee represents that
Employee’s performance of all the terms of this Agreement will not breach any
other agreement to which Employee is a party. 
Employee has not, and will not during the term of this Agreement, enter
into any oral or written agreement in conflict with any of the provisions of
this Agreement.  Employee further
represents that Employee is entering into or has entered into an employment
relationship with the Company of Employee’s own free will.


 


7.                                      Successors.  Any successor to the Company (whether direct
or indirect and whether by purchase, lease, merger, consolidation, liquidation
or otherwise) to all or substantially all of the Company’s business and/or
assets shall assume the obligations under this Agreement and agree expressly to
perform the obligations under this Agreement in the same manner and to the same
extent as the Company would be required to perform such obligations in the
absence of a succession.  The terms of
this Agreement and all of Employee’s rights hereunder and thereunder shall
inure to the benefit of, and be enforceable by, Employee’s personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.


 


8.                                      Notice.  Notices and
all other communications contemplated by this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered or when
mailed by U.S. registered or certified mail, return receipt requested and
postage prepaid.  Mailed notices to
Employee shall be addressed to Employee at the home address which Employee most
recently communicated to the Company in writing.  In the case of the Company, mailed notices
shall be addressed to its corporate headquarters, and all notices shall be
directed to the attention of its Secretary.


 


9.                                      Miscellaneous Provisions.


 


(a)                                 No Duty to Mitigate.  Employee shall not be required to mitigate
the amount of any payment contemplated by this Agreement (whether by seeking
new employment or in any other manner), nor shall any such payment be reduced
by any earnings that Employee may receive from any other source.


 


(b)                                 Waiver.  No
provision of this Agreement shall be modified, waived or discharged unless the
modification, waiver or discharge is agreed to in writing and signed by
Employee and by an authorized officer of the Company (other than
Employee).   No waiver by either party of
any breach of, or of compliance with, any condition or provision of this
Agreement by the other party shall be considered a waiver of any other
condition or provision or of the same condition or provision at another time.


 


(c)                                  Whole Agreement.  No
agreements, representations or understandings (whether oral or written and
whether express or implied) which are not expressly set forth in this Agreement
have been made or entered into by either party with respect to the subject
matter hereof.  This Agreement supersedes
any agreement concerning similar subject matter dated prior


 


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to
the date of this Agreement and by execution of this Agreement both parties
agree that any such predecessor agreement shall be deemed null and void.


 


(d)                                 Choice of Law.  The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of Utah without reference to conflict of
laws provisions.


 


(e)                                  Severability.  If
any term or provision of this Agreement or the application thereof to any
circumstance shall, in any jurisdiction and to any extent, be invalid or
unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable the remaining terms and provisions of
this Agreement or the application of such terms and provisions to circumstances
other than those as to which it is held invalid or unenforceable, and a
suitable and equitable term or provision shall be substituted therefor to carry
out, insofar as may be valid and enforceable, the intent and purpose of the
invalid or unenforceable term or provision.


 


(f)                                   Arbitration.  To
ensure the rapid and economical resolution of any and all disputes that arise
in connection with this Agreement or Employee’s termination with the Company,
Employee and the Company agree that any and all disputes, claims, or causes of
action, in law or equity, arising from or relating to the enforcement or
interpretation of this Agreement or the termination of Employee’s employment
(collectively, “Claims”), will be resolved to the fullest extent
permitted by law exclusively by final, binding, and confidential arbitration in
Salt Lake City, Utah, conducted by the American Arbitration Association (“AAA”)
or its successors, under the then applicable AAA rules by a single
arbitrator.  Claims subject to this
arbitration provision will (i) include, but not be limited to, Claims
pursuant to any federal, state or local law or statute, including (without
limitation) the Age Discrimination in Employment Act, as amended; Title VII of
the Civil Rights Act of 1964, as amended; the Americans With Disabilities Act
of 1990; the federal Fair Labor Standards Act; and state anti-discrimination
statutes; and Claims pursuant to any common law, tort law or contract law,
including (without limitation) breach of contract or other promise,
discrimination, harassment, retaliation, wrongful discharge, fraud, misrepresentation,
defamation, and emotional distress; and (ii) exclude Claims that by law
are not subject to arbitration.  The
arbitrator will:  (1) have the
authority to compel adequate discovery for the resolution of all Claims and to
award such relief as would otherwise be permitted by law; and (2) issue a
written arbitration decision including the arbitrator’s essential findings and
conclusions and a statement of the award. 
The Company will pay all of the arbitrator’s fees.  Employee and the Company
acknowledge that, by agreeing to this arbitration procedure, both Employee and
the Company waive the right to resolve any Claims through a trial by jury or
judge or by administrative proceeding.  Nothing in this Agreement is intended to
prevent Employee or the Company from obtaining injunctive relief in court if
the award to which such party might obtain in arbitration may be rendered
ineffectual without provisional relief. 
As provided in the AAA rules, any arbitration award may be enforced by
any court of competent jurisdiction.


 


(g)                                  Legal Fees and Expenses.  The parties shall each bear their own
expenses, legal fees and other fees incurred in connection with the execution
of this Agreement.


 


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(h)                                 No Assignment of Benefits.  The rights of any person to payments or
benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation of
law, including (without limitation) bankruptcy, garnishment, attachment or
other creditor’s process, and any action in violation of this Section 9(h) shall
be void.


 


(i)                                     Assignment by Company.  The Company may assign its rights under this
Agreement to an affiliate, and an affiliate may assign its rights under this
Agreement to another affiliate of the Company or to the Company.   In the case of any such assignment, the term
“Company” when used in a section of this Agreement shall mean the corporation
that actually employs the Employee.


 


(j)                                    Counterparts.  This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together will constitute one and the same
instrument.


 


The parties
have executed this Agreement on the date first written above.


 


	
   

  	
  WORLD
  HEART CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Sumner Estes

  
	
   

  	
  Title:
  

  	
  Chairman,
  Board of Directors

  
	
   

  	
  Address:
  

  	
  1173
  Brown Avenue, Lafayette, CA  94549

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MORGAN
  R BROWN

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature:
  

  	
  /s/
  Morgan R. Brown

  
	
   

  	
  Address:

  	
  241
  E 2450 S

  
	
   

  	
   

  	
  Bountiful, Utah 84010

  



 


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