Exhibit 10.1


 


October 17, 2005


 


Dr. David M. Lederman


P.O. Box 426


Marblehead, Massachusetts 01945


 


Dear David,


 


This letter will confirm in writing the terms that we have reached
concerning your commencement of work on a consulting basis as a Senior Advisor
to ABIOMED, Inc. (the “Company”) following your decision to retire from active
employment with the Company, all as approved by the Compensation Committee of
the Company’s Board of Directors on August 11, 2004.


 


In particular, you and the Company agree as follows:


 


1. Employment and Board Membership Termination Dates.  Your services as an employee of the Company
terminated as of the close of business on April 1, 2005 (the “Employment
Termination Date”).  The termination of
your employment did not affect the status of your position as the Chairman of
the Board of Directors of the Company. 
Your service as Chairman and a member of the Board of Directors
terminated, as provided in your letter of resignation, on June 10, 2005.


 


2. Consulting Services. 
Beginning on the Employment Termination Date, you have been engaged on a
consulting basis by the Company as a Senior Advisor, which engagement will
continue for a period of four years (until the fourth anniversary of the
Employment Termination Date).  You will
receive fixed annual compensation of $200,000 per year, payable in equal
monthly installments, during this four year consulting period (subject to
appropriate tax and other withholdings). Notwithstanding the foregoing, no
payment shall be made to you until October 2, 2005. As a Senior Advisor to the
Company, you will provide such consulting services as may be mutually agreed
upon between you and the Company.  The
Company may terminate your consulting relationship with the Company only for
cause.  Termination by the Company “for
cause” shall mean termination by the Company following your commission of a
felony (other than through vicarious liability or involving a vehicular
offense) or a crime involving fraud or embezzlement against the Company, or
your intentionally taking any action that is materially and demonstrably
injurious to the Company which, if subject to cure, is not cured within thirty
(30) days after receipt by you of written notice from the Company specifying
that the Company intends to terminate your services as a Senior Advisor for
cause and the facts and circumstances that the Company believes constitute “cause.”


 


3. Vacation.  You confirm
that the Company had paid to you any accrued and unused vacation pay through
the Employment Termination Date in accordance with the Company’s standard
policies.  This payment was made minus
appropriate tax and other withholdings.


 





















 


4. Medical and Dental Insurance. 
From and after the Employment Termination Date the Company will continue
to provide you medical and dental insurance (on the same basis as the Company’s
senior executives) without charge to you until such time as you are eligible
for full Medicare coverage.  In the event
of your death, although your estate will not be entitled to any further
compensation for your consulting beyond the compensation that had been earned
at the time of your death, the Company will continue to provide such medical
and dental insurance without charge to your wife until such time as she is
eligible for full Medicare coverage.


 


All other employee benefits ceased on the Employment Termination Date,
except to the extent provided in this letter agreement.


 


5. Stock Options.  Any
non-qualified (non-statutory) options that you hold to purchase shares of the
Company’s Common Stock pursuant to the Company’s stock option plans will
continue to vest while you are a consultant to the Company.


 


6. Legal Representation. 
This agreement is a legally binding document and your signature will
commit you to its terms.  You acknowledge
that you have been advised by the Company to discuss all aspects of this
agreement with an attorney before signing it, that you have carefully read and
fully understand all of the provisions of this agreement, and that you are
knowingly and voluntarily entering into this agreement.


 


7. Entire Agreement.  This
letter constitutes the entire agreement regarding its subject matter and
supersedes any previous agreements or understandings between us related to such
subject matter. This letter will not affect any of your rights or any of the
Company’s obligations under your Indemnification Agreement with the Company or
any of the Company’s rights or your obligations under your Confidentiality and
Non-Competition Agreement in favor of the Company, dated October 17, 2005, each
of which will continue in full force and effect in accordance with its
terms.  In signing this agreement, you
are not relying upon any oral promises or representations made by anyone at or
on behalf of the Company.


 


8. Governing Law.  This
agreement will be interpreted and enforced under the laws of the Commonwealth
of Massachusetts, without regard to conflict of law principles.


 


Please indicate your agreement to the terms of this Agreement by
signing and returning to me a copy of this letter on or before October 31,
2005.


 


All of us at the Company thank you for your tremendous contributions to
the Company in the past as Founder, Chief Executive Officer and leader.   We look forward to continuing to have the
benefit of your wise advice and counsel in your new role as Senior Advisor.


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Michael R. Minogue

  
	
   

  	
  Michael R. Minogue

  
	
   

  	
  Chairman, President and Chief Executive

  Officer

  



 





















 


I understand and agree completely to the foregoing, and sign it
knowingly and voluntarily under seal on the date written below.


 


	
  /s/ David M. Lederman

  	
   

  	
  October 17, 2005

  	
   

  
	
  David M. Lederman

  	
  Date

  



 





















 


ABIOMED,
INC.


 


CONFIDENTIALITY
AND


NON-COMPETITION
AGREEMENT

(APPENDIX TO CONSULTING AGREEMENT)


 


IN CONSIDERATION of my continued consultancy with
ABIOMED, Inc., and/or any one or more of its subsidiaries or affiliates
(collectively the “Company”), I
hereby agree as follows:


 


1.   Inventions
and other Developments.


 


1.1   I hereby assign and transfer to the Company
all of my right, title and interest in and to any and all Developments. The
term “Developments” shall mean all ideas, inventions, discoveries, designs,
algorithms, or concepts (collectively, “Concepts”), whether or not patentable
or copyrightable, that meet both
of the following criteria:


 


(a)
Such Concept is primarily applicable in the general field of cardiovascular
devices and/or in the specific field of cardiac assist and replacement devices;
and


 


(b)
 Such Concept is or was made, conceived,
created, developed, discovered, or invented or reduced to practice, either
individually or jointly with others, during my term as a Senior Advisor to the
Company under that certain letter agreement dated as of October 17, 2005 (“Consulting
Agreement”) to which this Confidentiality and Non-Competition Agreement is an Appendix
or during the period prior thereto in which I was an employee of the Company.


 


1.2   The Company shall have the sole and exclusive
ownership of all Developments (it being understood that such Development must
satisfy the requirements set forth in Section 1.1(a) and must also satisfy the
criteria set forth in Section 1.1(b)) and the sole right to determine the
manner in which they are used. I agree to execute and deliver such other
documents and instruments as the Company may reasonably request to evidence,
perfect, and protect its rights with respect to such Developments. I will
assist the Company in any reasonable manner which it may request to obtain and
enforce for its own benefit and patents, copyrights or trademarks (both in the
United States and in foreign countries) pertaining to the Developments.


 


1.3   The agreement set forth in this Section 1.1
is made upon the sole consideration of my continued service as a Senior Advisor
to the Company. I understand that I will not be entitled to compensation of any
kind on account of any Developments apart from or in addition to my
compensation as described under the Consulting Agreement to which this
Agreement is an Appendix.


 





















 


1.4   I understand that my obligations under
Section 1.2 will continue after the termination of my service as a consultant
to the Company. I further understand that if I am requested to perform any
obligations under Section 1.2, I shall receive for such performance a
reasonable per diem fee, as well as reimbursement of any expenses incurred at
the request of the Company.


 


2. Confidential Information.


 


2.1   I recognize that my relationship with the
Company is one of high trust and confidence by reason of my access to and
contact with the trade secrets and confidential and proprietary information of
the Company. I will not disclose to anyone outside of the Company or use for my
own benefit or for that of others, either during or at any time after my
consultancy with the Company, any confidential or proprietary information
regarding the Company or its business operations (collectively “Confidential
Information”), including, without limitation, trade secrets, data, computer
programs, know-how, industrial and commercial process, financial information,
marketing plans and customer lists.


 


2.2   My undertakings and obligations under this
Section 1.4 will not apply, however, to any Proprietary Information which:
(a) is or becomes generally known to the public through no action on my
part, (b) is generally disclosed to third parties by the Company without
restriction on such third parties, or (c) is approved for release by
written authorization of the Board of Directors of the Company.


 


3.   Other
Obligations.


 


I acknowledge that the Company from time to time may
have agreements with other persons or with the U.S. 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 and restrictions which are made known to me and to take all action
necessary to discharge the obligations of the Company under such agreements.


 


4.   Competition.


 


4.1   During my consultancy with the Company, I
will not, directly or indirectly, without the express written consent of the
Company:


 


(a) own, engage in, conduct, manage,
operate, participate in, be employed by or be connected in any manner
whatsoever with any business competitive with the business conducted by the
Company as of the date of this Agreement;


 


(b) employ or attempt to employ any
employee of the Company, or induce any employee of the Company to leave the
Company’s employ (it being understood that I shall not be precluded from hiring
former employees of the Company); or


 





















 


(c) become associated with in any
capacity, or solicit or sell to, any customer of the Company, products, systems
or solutions which overlap the business conducted by the Company as of the date
of this Agreement.


 


4.2   The foregoing restrictions shall not prevent
my investment in securities of publicly held corporations in the management of
which I do not participate.


 


5.   General
Provisions.


 


5.1   This Agreement supersedes all prior
agreements, written or oral, between me and the Company relating to the subject
matter of this Agreement. This Agreement may not be modified, changed or
discharged in whole or in part, except by an agreement in writing signed by me
and the Company. I agree that any change or changes in my advisory duties under
the Consulting Agreement, to which this Agreement is an Appendix, after the
signing of this Agreement shall not affect the validity or scope of this
Agreement.


 


5.2   This Agreement will be binding upon my heirs,
executors and administrators and will inure to the benefit of the Company and
its successors and assigns.


 


5.3   No delay or omission by the Company in
exercising any right under this Agreement will operate as a waiver of that or
any other right. A waiver or consent given by the Company on any one occasion
is effective only in that instance and will not be construed as a bar to or
waiver of any right on any other occasion.


 


5.4   I expressly consent to be bound by the
provisions of this Agreement for the benefit of the Company, its successors,
assigns, nominees and any subsidiary or affiliate thereof to whose consultancy
I may be transferred without the necessity that this Agreement be resigned at
the time of such transfer.


 


5.5   In the event that any provision of this
Agreement would be held to be invalid or unenforceable for any reason unless
narrowed by construction, this Agreement shall be construed as if such invalid
or unenforceable provision had been so drawn as not to be invalid or
unenforceable. If, notwithstanding the foregoing, any provision of this
Agreement shall be held to be invalid or unenforceable, such unenforceability
shall attach only to such provision and shall not affect or render invalid or
unenforceable any other provisions of this Agreement.


 


5.6   This Agreement shall be governed by and
interpreted, construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts.


 


 


	
  Date: 

  	
  October 17, 2005

  	
   

  	
   

  	
  /s/ David M. Lederman

  
	
   

  	
   

  	
  David M. Lederman,
  Ph.D.