EXHIBIT 10.24
THORATEC CORPORATION
GRANTOR TRUST AGREEMENT
This Grantor Trust Agreement (the "Trust Agreement") is made this 21st
day of November, 2003 by and between Thoratec Corporation ("the Company") and
Wachovia Bank, National Association ("the Trustee").
RECITALS
(A) WHEREAS, the Company has adopted the nonqualified deferred
compensation plans and agreements (the "Arrangements") including the Thoratec
Deferred Compensation Plan to which this Trust is attached (any other
Arrangements to which the terms of this Trust apply shall specifically so
provide and shall be attached to this Trust);
(B) WHEREAS, the Company has incurred or expects to incur
liability under the terms of such Arrangements with respect to the individuals
participating in such Arrangements (the "Participants and Beneficiaries");
(c) WHEREAS, the Company hereby establishes a Trust (the "Trust")
and shall contribute to the Trust assets that shall be held therein, subject to
the claims of the Company's creditors in the event of the Company's Insolvency,
as herein defined, until paid to Participants and their Beneficiaries in such
manner and at such times as specified in the Arrangements and in this Trust
Agreement;
(D) WHEREAS, it is the intention of the parties that this Trust
shall constitute an unfunded arrangement and shall not affect the status of the
Arrangements as unfunded plans, each maintained for the purpose of providing
deferred compensation for a select group of management or highly compensated
employees for purposes of Title I of the Employee Retirement Income Security Act
of 1974; and
(E) WHEREAS, it is the intention of the Company to make
contributions to the Trust to provide itself with a source of funds (the "Fund")
to assist it in satisfying its liabilities under the Arrangements.
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
SECTION 1. ESTABLISHMENT OF THE TRUST
(a) The Trust is intended to be a Grantor Trust, of which the
Company is the Grantor, within the meaning of subpart E, part I, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended, and
shall be construed accordingly.
(b) The Company shall be considered the Grantor for the purposes
of the Trust.
(c) The Trust hereby established is irrevocable.
(d) The Company hereby deposits with the Trustee in the Trust one
thousand dollars and zero cents ($1,000.00) which shall become the principal of
the Trust to be held, administered and disposed of by the Trustee as provided in
this Trust Agreement.
(e) The principal of the Trust, and any earnings thereon shall be
held separate and apart from other funds of the Company and shall be used
exclusively for the uses and purposes of Participants and general creditors as
herein set forth. Participants and their Beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of the Trust. Any
rights created under the Arrangements and this Trust Agreement shall be
unsecured contractual rights of Participants and their Beneficiaries against the
Company. Any assets held by the Trust will be subject to the claims of the
general creditors of the Company under federal and state law in the event the
Company is Insolvent, as defined in Section 3(a) herein.
(f) The Company, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other property acceptable to
the Trustee in the Trust to augment the principal to be held, administered and
disposed of by the Trustee as provided in this Trust Agreement. Prior to a
Change in Control, neither the Trustee nor any Participant or Beneficiary shall
have any right to compel additional deposits.
(g) In addition to the Initial Contribution, the Company shall
make such other contributions as shall from time to time be authorized by due
corporate action. Any such payments made by the Company may be in cash, by
letter of credit or, prior to the date as of which a Change in Control occurs,
in such property (including, without limitation, securities issued by the
Company) as the Company may determine. The Company shall keep accurate books and
records with respect to the interest of each Executive in any Plan and shall
provide copies of such books and records to the Trustee at any time as the
Trustee shall request.
(h) As of the closing of a Change in Control, as defined herein,
the Company shall, as soon as possible, make a contribution to the Trust in an
amount that is sufficient (taking into account the Trust assets, if any,
resulting from prior contributions) to fund the Trust in an amount equal to no
less than 100% but no more than 120% of the Required Funding and Expense
Reserve. The Required Funding shall be equal to the amount necessary to pay each
Participant or Beneficiary the benefits to which Participants or their
Beneficiaries would be entitled pursuant to the terms of the Arrangements as of
the date on which the Change in Control occurred. The Expense Reserve shall be
equal to the lesser of: 1) the estimated trustee and record-keeper expenses and
fees for one year or 2) seventy-five thousand dollars ($75,000). Annually, the
Company shall recalculate the Required Funding and Expense Reserve as of
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December 31 of the preceding year and, if the assets of the trust are less than
the sum of the Required Funding and Expense Reserve, the Company shall make a
contribution to the Trust in an amount equal to no less than 100% but no more
than 120% of the Required Funding and Expense Reserve.
SECTION 2. PAYMENTS TO PARTICIPANTS AND THEIR BENEFICIARIES
(a) Prior to a Change in Control, distributions from the Trust
shall be made by the Trustee to Participants and Beneficiaries at the direction
of the Company except as may otherwise be provided herein. Prior to a Change in
Control, the entitlement of a Participant or his or her Beneficiaries to
benefits under the Arrangements shall be determined by the Committee or
Committees appointed by the Company under the Arrangements, and any claim for
such benefits shall be considered and reviewed under the procedures set out in
the Arrangements unless the Trustee determines, in its sole and absolute
discretion, that there has been a Failure to Pay.
(b) The Company may make payment of benefits directly to
Participants or their Beneficiaries as they become due under the terms of the
Arrangements. The Company shall notify the Trustee of its decision to make
payment of benefits directly prior to the time amounts are payable to
Participants or their Beneficiaries. In addition, if the principal of the Trust,
and any earnings thereon, are not sufficient to make payments of benefits in
accordance with the terms of the Arrangements, the Company shall make the
balance of each such payment as it falls due in accordance with the
Arrangements. The Trustee shall notify the Company when principal and earnings
are not sufficient. Nothing in this Agreement shall relieve the Company of its
liabilities to pay benefits due under the Arrangements except to the extent such
liabilities are actually satisfied by application of assets of the Trust.
(c) The Company shall deliver to the Trustee a schedule of
benefits due under the Arrangements on an annual basis. Before a Change in
Control, the Company shall deliver on updated schedule of benefits due under the
Arrangements. After a Change in Control, the Trustee shall pay benefits due in
accordance with such schedule. After a Change in Control, the Committee or
Committees appointed by the Company shall continue to make the determination of
benefits due to Participants or their Beneficiaries and shall provide the
Trustee with an updated schedule of benefits due; provided however, a
Participant or the Beneficiaries of a deceased Participant may make application
to the Trustee for an independent decision as to the amount or form of their
benefits due under the Arrangements. In making any determination required or
permitted to be made by the Trustee under this Section, the Trustee shall, in
each such case, reach its own independent determination, in its absolute and
sole discretion, as to the Participant's or Beneficiary's entitlement to a
payment hereunder
(d) Notwithstanding anything herein to the contrary, upon the
occurrence of a Failure to Pay, each Participant covered by the situation
described in clause (i) of the
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definition of Failure to Pay, or each of the Participants in the event of a
situation described in clause (ii) of that definition, as the case may be, shall
be entitled to receive from the Trust the payments described by the underlying
Arrangement, as determined by the Trustee, in its sole and absolute discretion.
(e) In making its determination under part (c) or part (d) of this
Section 2, the Trustee may consult with and make such inquiries of such persons,
including the Participant or Beneficiary, the Company, legal counsel, actuaries
or other persons, as the Trustee may reasonably deem necessary. Any reasonable
costs incurred by the Trustee in arriving at its determination shall be
reimbursed by the Company and, to the extent not paid by the Company within a
reasonable time, shall be charged to the Trust. The Company waives any right to
contest any amount paid over by the Trustee hereunder pursuant to a good faith
determination made by the Trustee notwithstanding any claim by or on behalf of
the Company (absent a manifest abuse of discretion by the Trustee) that such
payments should not be made.
(f) The Trustee agrees that it will not itself institute any
action at law or at equity, whether in the nature of an accounting,
interpleading action, request for a declaratory judgment or otherwise,
requesting a court or administrative or quasi-judicial body to make the
determination required to be made by the Trustee under this Section 2 in the
place and stead of the Trustee. The Trustee may (and, if necessary or
appropriate, shall) institute an action to collect a contribution due the Trust
following a Change in Control or in the event that the Trust should ever
experience a shortfall in the amount of assets necessary to make payments
pursuant to the terms of the Arrangements.
(g) In the event any Participant or his or her Beneficiary is
determined to be subject to federal income tax on any amount to the credit of
his or her account under any Arrangement prior to the time of payment hereunder,
whether or not due to the establishment of or contributions to this Trust, a
portion of such taxable amount equal to the federal, state and local taxes
(excluding any interest or penalties) owed on such taxable amount, shall be
distributed by the Trustee as soon thereafter as practicable to such Participant
or Beneficiary. The Company shall promptly reimburse the Trust for any such
distribution in an amount certified by the Trustee to be needed for the
Participant's benefits. For these purposes, a Participant or Beneficiary shall
be deemed to pay state and local taxes at the highest marginal rate of taxation
in the state in which the Participant resides or is employed (or both) where a
tax is imposed and federal income taxes at the highest marginal rate of
taxation, net of the maximum reduction in federal income taxes which could be
obtained from deduction of such state and local taxes. Such distributions shall
be at the direction of the Company or the Trustee, or upon proper application of
the Participant or Beneficiary; provided that the actual amount of the
distribution shall be determined by the Company prior to a Change in Control and
the Trustee following a Change in Control. An amount to the credit of a
Participant's Account shall be determined to be subject to federal income tax
upon the earliest of: (a) a
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final determination by the United States Internal Revenue Service addressed to
the Participant or his Beneficiary which is not appealed to the courts; (b) a
final determination by the United States Tax Court or any other federal court
affirming any such determination by the Internal Revenue Service; or (c) an
opinion by the Company's tax counsel, addressed to the Company and the Trustee,
to the effect that by reason of Treasury Regulations, amendments to the Internal
Revenue Code, published Internal Revenue Service rulings, court decisions or
other substantial precedent, amounts to the credit of Participants hereunder are
subject to federal income tax prior to payment.
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO THE TRUST
BENEFICIARY WHEN THE COMPANY IS INSOLVENT
(a) The Trustee shall cease payment of benefits to Participants
and their Beneficiaries if the Company is Insolvent. The Company shall be
considered "Insolvent" for purposes of this Trust Agreement if (i) the Company
is unable to pay its debts as they become due, or (ii) the Company is subject to
a pending proceeding as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, the
principal and income of the Trust shall be subject to claims of general
creditors of the Company under federal and state law as set forth below.
(1) The Board of Directors and the Chief Executive
Officer of the Company shall have the duty to inform the Trustee in writing that
the Company is Insolvent. If a person claiming to be a creditor of the Company
alleges in writing to the Trustee that the Company has become Insolvent, the
Trustee shall determine whether the Company is Insolvent and, pending such
determination, the Trustee shall discontinue payment of benefits to Participants
or their Beneficiaries.
(2) Unless the Trustee has actual knowledge that the
Company is Insolvent, or has received notice from the Company or a person
claiming to be a creditor alleging that the Company is Insolvent, the Trustee
shall have no duty to inquire whether the Company is Insolvent. The Trustee may
in all events rely on such evidence concerning the Company's solvency as may be
furnished to the Trustee and that provides the Trustee with a reasonable basis
for making a determination concerning the Company's solvency.
(3) If at any time the Trustee has determined that the
Company is Insolvent, the Trustee shall discontinue payments to Participants or
their Beneficiaries and shall hold the assets of the Trust for the benefit of
the Company's general creditors. Nothing in this Trust Agreement shall in any
way diminish any rights of Participants or their Beneficiaries to pursue their
rights as general creditors of the Company with respect to benefits due under
the Arrangements or otherwise.
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(4) The Trustee shall resume the payment of benefits to
Participants or their Beneficiaries in accordance with Section 2 of this Trust
Agreement only after the Trustee has determined that the Company is not
Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to Section 3(b)
hereof and subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to
Participants or their Beneficiaries under the terms of the Arrangements for the
period of such discontinuance, less the aggregate amount of any payments made to
Participants or their Beneficiaries by the Company in lieu of the payments
provided for hereunder during any such period of discontinuance.
SECTION 4. PAYMENTS WHEN A SHORTFALL OF THE TRUST ASSETS OCCURS
(a) If there are not sufficient assets for the payment of current
and expected future benefits pursuant to Section 2 or Section 3(c) hereof and
the Company does not otherwise make such payments within a reasonable time after
demand from the Trustee, the Trustee shall allocate the Trust assets among the
Participants or their Beneficiaries in the following order of priority:
(1) first, among vested Participants (including partially
vested Participants, and regardless of whether they are actively employed) and
their Beneficiaries in proportion to their vested benefits; and
(2) second, among non-vested and partially vested
Participants (regardless of whether they are actively employed) and their
Beneficiaries in proportion to their unvested benefits.
(b) Within each category, assets shall be allocated pro-rata with
respect to the total present value of benefits expected for each Participant or
Beneficiary within the category, and payments to each Participant or Beneficiary
shall be made to the extent of the assets allocated to each Participant or
Beneficiary.
(c) Upon receipt of a contribution from the Company necessary to
make up for a shortfall in the payments due, the Trustee shall resume payments
to all the Participants and Beneficiaries under the Arrangements. Following a
Change in Control, the Trustee shall have the right and duty to compel a
contribution to the Trust from the Company to make-up for any shortfall.
SECTION 5. PAYMENTS TO THE COMPANY
(a) Except as provided in Section l(h), Section 3 and Section 5(b)
hereof, the Company shall have no right or power to direct the Trustee to return
to the Company or to divert to others any of the Trust assets before all payment
of benefits have been made to Participants and their Beneficiaries pursuant to
the terms of the Arrangements.
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(b) In the event that the Committee, prior to a Change in Control,
or the Trustee in its sole and absolute discretion, after a Change in Control,
determines that the Trust assets exceed 120 percent of the anticipated benefit
obligations and administrative expenses that are to be paid under the
Arrangements, the Trustee, at the written direction of the Committee, prior to a
Change in Control, or the Trustee in its sole and absolute discretion, after a
Change in Control, shall distribute to the Company such excess portion of Trust
assets.
SECTION 6. INVESTMENT AUTHORITY
(a) The Trustee shall not be liable in discharging its duties
hereunder, including without limitation its duty to invest and reinvest the
Fund, if it acts for the exclusive benefit of the Participants and their
Beneficiaries, in good faith and as a prudent person would act in accomplishing
a similar task and in accordance with the terms of this Trust Agreement and any
applicable federal or state laws, rules or regulations.
(b) Subject to investment guidelines agreed to in writing from
time to time by the Company and the Trustee prior to a Change in Control, the
Trustee shall have the power in investing and reinvesting the Fund in its sole
discretion:
(1) To invest and reinvest in any United States Treasury
security, investment grade corporate and United States government agency debt
instrument, money market-fund eligible commercial paper debt instrument or money
market fund of the Trustee, or an affiliate of the Trustee, without being
limited to the classes or property in which the trustees are authorized to
invest by any law or any rule of court of any state and without regard to the
proportion any such property may bear to the entire amount of the Fund;
(2) To commingle for investment purposes all or any
portion of the Fund with assets of any other similar trust or trusts established
by the Company with the Trustee for the purpose of safeguarding deferred
compensation or retirement income benefits of its employees and/or directors;
(3) To retain any property at any time received by the
Trustee;
(4) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other similar plan relating
to property held by it and to consent to or oppose any such plan or any action
thereunder or any contract, lease, mortgage, purchase, sale or other action by
any person;
(5) To deposit any property held by it with any
protective, reorganization or similar committee, to delegate discretionary power
thereto, and to pay part of the expenses and compensation thereof any
assessments levied with respect to any such property to deposited;
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(6) To extend the time of payment of any obligation held
by it;
(7) To hold uninvested any moneys received by it, without
liability for interest thereon, but only in anticipation of payments due for
investments, reinvestments, expenses or disbursements;
(8) To exercise all voting or other rights with respect
to any property held by it and to grant proxies, discretionary or otherwise;
(9) To employ suitable contractors and counsel, who may
be counsel to the Company or to the Trustee, and to pay their reasonable
expenses and compensation from the Fund to the extent not paid by the Company;
(10) To register investments in its own name or in the
name of a nominee; to hold any investment in bearer form; and to combine
certificates representing securities with certificates of the same issue held by
it in other fiduciary capacities or to deposit or to arrange for the deposit of
such securities with any depository, even though, when so deposited, such
securities may be held in the name of the nominee of such depository with other
securities deposited therewith by other persons, or to deposit or to arrange for
the deposit of any securities issued or guaranteed by the United States
government, or any agency or instrumentality thereof, including securities
evidenced by book entries rather than by certificates, with the United States
Department of the Treasury or a Federal Reserve Bank, even though, when so
deposited, such securities may not be held separate from securities deposited
therein by other persons; provided, however, that no securities held in the Fund
shall be deposited with the United States Department of the Treasury or a
Federal Reserve Bank or other depository in the same account as any individual
property of the Trustee, and provided, further, that the books and records of
the Trustee shall at all tunes show that all such securities are part of the
Trust Fund;
(11) To settle, compromise or submit to arbitration any
claims, debts or damages due or owing to or from the Trust, respectively, to
commence or defend suits or legal proceedings to protect any interest of the
Trust, and to represent the Trust in all suits or legal proceedings Subject to
Section 2(g) in any court or before any other body or tribunal; provided,
however, that the Trustee shall not be required to take any such action unless
it shall have been indemnified by the Company to its reasonable satisfaction
against liability or expenses it might incur therefrom;
(12) To hold and retain policies of life insurance,
annuity contracts, and other property of any kind which policies are contributed
to the Trust by the Company or any subsidiary of the Company or are purchased by
the Trustee;
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(13) To hold any other class of assets which may be
contributed by the Company and that is deemed reasonable by the Trustee, unless
expressly prohibited herein; and
(14) Generally, to do all acts, whether or not expressly
authorized, that the Trustee may deem necessary or desirable for the protection
of the Fund.
(c) Notwithstanding any other provision of this Section 6, prior
to a Change in Control:
(1) Grantor shall have the right, subject to this
Section, to direct the Trustee with respect to the investment of all or any
portion of the assets of the Trust. Grantor may also at any time prior to a
Change in Control direct the Trustee to segregate all or a portion of the Trust
in a separate investment account or accounts and appoint one or more investment
managers to direct the investment and reinvestment of each such investment
account or accounts.
(2) It shall be the duty of the Trustee to act strictly
in accordance with each direction issued to Trustee by Grantor or an investment
manager appointed by Grantor. The Trustee shall be under no duty to question any
such direction, to review any securities or other property acquired by it
pursuant to such directions or to make any recommendations with respect to such
securities or other property.
(3) Notwithstanding the foregoing, the Trustee, without
obtaining prior approval or direction, shall invest cash balances held by it
from time to time in short term cash equivalents including, but not limited to,
any short term mutual fund established and maintained by the Trustee subject to
the instrument establishing such trust fund, U.S. Treasury Bills, commercial
paper (including such forms of commercial paper as may be available through the
Trustee's Trust Department), certificates of deposit (including certificates
issued by the Trustee in its separate corporate capacity), and similar type
securities, with a maturity not to exceed one year; and, furthermore, sell such
short term investments as may be necessary to carry out the instructions of
Grantor or an investment manager regarding more permanent type investment and
directed distributions.
(4) The Trustee shall neither be liable nor responsible
for any loss resulting to the Trust by reason of any sale or purchase of an
investment directed by Grantor or Grantor's investment manager nor by reason of
the failure to take any action with respect to any investment which was acquired
pursuant to any such direction in the absence of further directions of Grantor
or its investment manager.
(5) Notwithstanding anything in this Agreement to the
contrary, the Trustee shall be indemnified as permitted by applicable law and
saved harmless by Grantor from and against any and all personal liability to
which the Trustee may be subjected by carrying out any directions of Grantor or
its investment manager issued
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pursuant hereto or for failure to act in the absence of directions of Grantor or
its investment manager including all expenses reasonably incurred in its defense
in the event Grantor fails to provide such defense; provided, however, the
Trustee shall not be so indemnified if it participates knowingly in, or
knowingly undertakes to conceal, an act or omission of Grantor or its investment
manager, having actual knowledge that such act or omission is a breach of a
fiduciary duty; provided further, however, that the Trustee shall not be deemed
to have knowingly participated in or knowingly undertaken to conceal an act or
omission of Grantor or its investment manager with knowledge that such act or
omission was a breach of fiduciary duty by merely complying with directions of
Grantor or its investment manager or for failure to act in the absence of
directions of Grantor or its investment manager. The Trustee may rely upon any
order, certificate, notice, direction or other documentary confirmation
purporting to have been issued by Grantor or its investment manager which the
Trustee believes to be genuine and to have been issued by Grantor or its
investment manager. The Trustee shall not be charged with knowledge of the
termination of the appointment of its investment manager until it receives
written notice thereof from Grantor
(d) Following a Change in Control, the Trustee shall have the sole
and absolute discretion in the management of the Trust assets and shall have all
the powers set forth under Section 6(b). In investing the Trust assets, the
Trustee shall consider:
(1) the needs of the Arrangements;
(2) the need for matching of the Trust assets with the
liabilities of the Arrangements; and
(3) the duty of the Trustee to act solely in the best
interests of the Participants and their Beneficiaries.
(e) The Trustee shall have the right, in its sole discretion, to
delegate its investment responsibility to an investment manager who may be an
affiliate of the Trustee. In the event the Trustee shall exercise this right,
the Trustee shall remain, at all times responsible for the acts of an investment
manager.
(f) The Company shall have the right at any time, and from tune to
time in its sole discretion, to substitute assets (other than securities issued
by the Trustee or the Company) of equal fair market value for any asset held by
the Trust. This right is exercisable by the Company in a nonfiduciary capacity
without the approval or consent of any person in a fiduciary capacity; provided,
however, that, following a Change in Control, no such substitution shall be
permitted unless the Trustee determines that the fair market values of the
substituted assets are equal.
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SECTION 7. INSURANCE CONTRACTS
(a) To the extent that the Trustee is directed by the Company
prior to a Change in Control to invest part or all of the Trust Fund in
insurance contracts, the type and amount thereof shall be specified by the
Company. The Trustee shall be under no duty to make inquiry as to the propriety
of the type or amount so specified.
(b) Each insurance contract issued shall provide that the Trustee
shall be the owner thereof with the power to exercise all rights, privileges,
options and elections granted by or permitted under such contract or under the
rules of the insurer. The exercise by the Trustee of any incidents of ownership
under any contract shall, prior to a Change in Control, be subject to the
direction of the Company. After a Change in Control, the Trustee shall have all
such rights.
(c) The Trustee shall have no power to name a beneficiary of the
policy other than the Trust, to assign the policy (as distinct from conversion
of the policy to a different form) other than to a successor Trustee, or to loan
to any person the proceeds of any borrowing against an insurance policy held in
the Trust Fund.
(d) No insurer shall be deemed to be a party to the Trust and an
insurer's obligations shall be measured and determined solely by the terms of
contracts and other agreements executed by the insurer.
SECTION 8. DISPOSITION OF INCOME
(a) Prior to a Change in Control, all income received by the
Trust, net of expenses and taxes, may be returned to the Company or accumulated
and reinvested within the Trust at the direction of the Company.
(b) Following a Change in Control, all income received by the
Trust, net of expenses and taxes payable by the Trust, shall be accumulated and
reinvested within the Trust.
SECTION 9. ACCOUNTING BY THE TRUSTEE
The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions required to be
made, including such specific records as shall be agreed upon in writing between
the Company and the Trustee. Within forty-five (45) days following the close of
each calendar year and within forty-five (45) days after the removal or
resignation of the Trustee, the Trustee shall deliver to the Company a written
account of its administration of the Trust during such year or during the period
from the close of the last preceding year to the date of such removal or
resignation setting forth all investments, receipts, disbursements and other
transactions effected by it, including a description of all securities and
investments purchased and sold with the cost or net proceeds of such purchases
or sales (accrued interest paid or
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receivable being shown separately), and showing all cash, securities and other
property held in the Trust at the end of such year or as of the date of such
removal or resignation, as the case may be. The Company may approve such account
by an instrument in writing delivered to the Trustee. In the absence of the
Company's filing with the Trustee objections to any such account within one
hundred eighty (180) days after its receipt, the Company shall be deemed to have
so approved such account. In such case, or upon the written approval by the
Company of any such account, the Trustee shall, to the extent permitted by law,
be discharged from all liability to the Company for its acts or failures to act
described by such account. The foregoing, however, shall not preclude the
Trustee from having its accounting settled by a court of competent jurisdiction.
The Trustee shall be entitled to hold and to commingle the assets of the Trust
in one Fund for investment purposes but at the direction of the Company prior to
a Change in Control, the Trustee shall create one or more sub-accounts.
SECTION 10. RESPONSIBILITY OF THE TRUSTEE
(a) The Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent person acting
in like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that the
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by the Company which is contemplated by,
and in conformity with, the terms of the Arrangements or this Trust and is given
in writing by the Company. In the event of a dispute between the Company and a
party, the Trustee may apply to a court of competent jurisdiction to resolve the
dispute, subject, however to Section 2(f) hereof.
(b) The Company hereby indemnifies the Trustee against losses,
liabilities, claims, costs and expenses in connection with the administration of
the Trust, unless resulting from the gross negligence or misconduct of Trustee.
To the extent the Company fails to make any payment on account of an indemnity
provided in this paragraph 10(b), in a reasonably timely manner, the Trustee may
obtain payment from the Trust. If the Trustee undertakes or defends any
litigation arising in connection with this Trust or to protect a Participant's
or Beneficiary's rights under the Arrangements, the Company agrees to indemnify
the Trustee against the Trustee's costs, reasonable expenses and liabilities
(including, without limitation, attorneys' fees and expenses) relating thereto
and to be primarily liable for such payments. If the Company does not pay such
costs, expenses and liabilities in a reasonably timely manner, the Trustee may
obtain payment from the Trust.
(c) Prior to a Change in Control, the Trustee may consult with
legal counsel (who may also be counsel for the Company generally) with respect
to any of its duties or obligations hereunder. Following a Change in Control the
Trustee shall select independent legal counsel and may consult with counsel or
other persons with respect to
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its duties and with respect to the rights of Participants or their Beneficiaries
under the Arrangements.
(d) The Trustee may hire agents, accountants, actuaries,
investment advisors, financial consultants or other professionals to assist it
in performing any of its duties or obligations hereunder and may rely on any
determinations made by such agents and information provided to it by the
Company.
(e) The Trustee shall have, without exclusion, all powers
conferred on the Trustee by applicable law, unless expressly provided otherwise
herein.
(f) Notwithstanding any powers granted to the Trustee pursuant to
this Trust Agreement or to applicable law, the Trustee shall not have any power
that could give this Trust the objective of carrying on a business and dividing
the gains therefrom, within the meaning of section 301.7701-2 of the Procedure
and Administrative Regulations promulgated pursuant to the Internal Revenue
Code.
SECTION 11. COMPENSATION AND EXPENSES OF THE TRUSTEE
The Trustee's compensation shall be as agreed in writing from time to
time by the Company and the Trustee. The Company shall pay all administrative
expenses and the Trustee's fees and shall promptly reimburse the Trustee for any
fees and expenses of its agents. If not so paid, the fees and expenses shall be
paid from the Trust.
SECTION 12. RESIGNATION AND REMOVAL OF THE TRUSTEE
(a) Prior to a Change in Control, the Trustee may resign at any
time by written notice to the Company, which shall be effective sixty (60) days
after receipt of such notice unless the Company and the Trustee agree otherwise.
Following a Change in Control, the Trustee may resign only after the appointment
of a successor Trustee.
(b) The Trustee may be removed by the Company on sixty days (60)
days notice or upon shorter notice accepted by the Trustee prior to a Change in
Control. Subsequent to a Change in Control, the Trustee may only be removed by
the Company with the consent of a Majority of the Participants.
(c) If the Trustee resigns within two years after a Change in
Control, as defined herein, the Company, or if the Company fails to act within a
reasonable period of time following such resignation, the Trustee, shall apply
to a court of competent jurisdiction for the appointment of a successor Trustee
which satisfies the requirements of Section 13 or for instructions.
(d) Upon resignation or removal of the Trustee and appointment of
a successor Trustee, all assets shall subsequently be transferred to the
successor Trustee. The transfer
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shall be completed within sixty (60) days after receipt of notice of
resignation, removal or transfer, unless the Company extends the time limit.
(e) If the Trustee resigns or is removed, a successor shall be
appointed by the Company with the consent of a Majority of Participants if a
Change in Control has occurred, in accordance with Section 13 hereof, by the
effective date of resignation or removal under paragraph(s) (a) or (b) of this
section. If no such appointment has been made, the Trustee may apply to a court
of competent jurisdiction for appointment of a successor or for instructions.
All expenses of the Trustee in connection with the proceeding shall be allowed
as administrative expenses of the Trust.
SECTION 13. APPOINTMENT OF SUCCESSOR
(a) If the Trustee resigns or is removed in accordance with
Section 12 hereof, the Company may appoint, subject to Section 12, any third
party legally permitted to act as Trustee pursuant to the terms of this
Agreement with a net worth exceeding $1,000,000,000 to replace the Trustee upon
resignation or removal. The successor Trustee shall have all of the rights and
powers of the former Trustee, including ownership rights in the Trust. The
former Trustee shall execute any instrument necessary or reasonably requested by
the Company or the successor Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts of
any prior Trustee and may retain or dispose of existing Trust assets, subject to
Section 8 and 9 hereof. The successor Trustee shall not be responsible for and
the Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it becomes successor
Trustee.
SECTION 14. AMENDMENT OR TERMINATION
(a) This Trust Agreement may be amended by a written instrument
executed by the Trustee and the Company, except as otherwise provided in this
Section 14. Notwithstanding the foregoing, no such amendment shall conflict with
the terms of the Arrangements or shall make the Trust revocable.
(b) Following a Change in Control, the Trust shall not terminate
until the date on which Participants and their Beneficiaries have received all
of the benefits due to them under the terms and conditions of the Arrangements.
(c) Upon written approval of all Participants or Beneficiaries
entitled to payment of benefits pursuant to the terms of the Arrangements, the
Company may terminate this Trust prior to the time all benefit payments under
the Arrangements have been made. All assets in the Trust at termination shall be
returned to the Company.
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(d) This Trust Agreement may not be amended by the Company
following a Change in Control without the written consent of a Majority of the
Participants.
SECTION 15. DEFINITIONS
(a) For purposes of this Trust, the following terms shall be
defined as set forth below:
(1) Failure to Pay shall mean that the circumstances
described in either (i) or (ii) have occurred:
i. Any Plan Participant shall have notified the
Trustee and the Company in writing that the Company shall have failed to pay to
the Participant, when due, either directly or by direction to the Trustee in
accordance with the terms of this Trust, at least 75% of any and all amounts
which the Participant was entitled to receive at any time in accordance with the
terms of any Plan, the payment schedule or this Trust Agreement and that such
amount remains unpaid. Such notice must set forth the amount, if any, which was
paid to the Participant, and the amount which the Participant believes he or she
was entitled to receive under the Plans, the payment and this Trust Agreement.
If the failure to make such payment shall have continued for a period of 30 days
after receipt of such notice by the Trustee and by the Company, and during such
30-day period the Company shall have failed to prove, by clear and convincing
evidence as determined by the Trustee in its sole and absolute discretion, that
such amount was in fact paid or was not due and payable; or
ii. More than two Plan Participants shall have
notified the Trustee and the Company in writing, either individually or jointly,
that they have not been paid, when due, amounts to which they are entitled under
the Plans payment, and that such amount remains unpaid. Each such notice must
set forth the amount, if any, which was paid to the Participant, and the amount
which the Participant believes he or she was entitled to receive under the
Plans, the payment and this Trust Agreement. Within 15 days after receipt of
each such notice, the Trustee shall determine, on a preliminary basis, whether
any failure to pay such Participants has resulted in a failure to pay when due,
directly or by direction, at least 75% of the aggregate amount due to all
Participants under all the Plans, the schedule and this Trust Agreement in any
two-year period, and that such amount remains unpaid. If the Trustee determines
that such a failure has occurred, then it shall so notify the company and the
Participants in writing within the same 15 day period. Within a period of 20
days after receipt of such notice from the Trustee, the Company shall have
failed to prove by clear and convincing evidence, in the sole and absolute
discretion of the Trustee, that such amount was paid or was not due and payable.
(2) Potential Change in Control shall be triggered upon
the date that a transaction is discussed by the Company's Board of Directors or
made known publicly
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that, if consummated, would result in a Change in Control. In the event that the
transaction is not consummated or if two (2) years have transpired since the
Potential Change in Control was triggered without a Change in Control occurring,
the Potential Change in Control shall be deemed void.
(3) Change in Control. For purposes of this Trust, Change
in Control is defined in the Thoratec Deferred Compensation Plan.
(4) Majority of Participants shall mean participants
whose vested rights under the Arrangements exceed 50% of the vested rights of
all Participants.
(b) Prior to a Change in Control or Potential Change in Control,
the Committee, as defined in the Thoratec Corporation Deferred Compensation
Plan, shall have the specific authority to determine whether a Potential Change
in Control or Change in Control will occur based upon a contemplated
transaction, and to determine whether the Potential Change in Control is void
under the guidance of this Section 15 and shall be required to give the Trustee
notice of a Potential Change in Control, a Change in Control, or a void
Potential Change in Control. The Trustee shall be entitled to rely upon such
notice, but if the Trustee receives notice of a Change in Control from another
source, or if no determination is made prior to a Change in Control, the Trustee
shall make its own independent determination.
SECTION 16. MISCELLANEOUS
(a) Any provision of this Trust Agreement prohibited by law shall
be ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) The Company hereby represents and warrants that all of the
Arrangements have been established, maintained and administered in accordance
with all applicable laws, including without limitation, ERISA. The Company
hereby indemnifies and agrees to hold the Trustee harmless from all liabilities,
including attorney's fees, relating to or arising out of the establishment,
maintenance and administration of the Arrangements. To the extent the Company
does not pay any of such liabilities in a reasonably timely manner, the Trustee
may obtain payment from the Trust.
(c) Benefits payable to Participants and their Beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(d) This Trust Agreement shall be governed by and construed in
accordance with the laws of North Carolina.
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IN WITNESS WHEREOF, this Grantor Trust Agreement has been executed on
behalf of the parties hereto on the day and year first above written.
THORATEC CORPORATION WACHOVIA BANK, NATIONAL ASSOCIATION
By: By:
-------------------------- --------------------------
Its: PRESIDENT AND CEO ITS: SENIOR VICE PRESIDENT
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