Mr Douglas E Godshall 8 Overfield Drive Medfield MA USA 02052 Dear Doug:
Exhibit 99.1
5
December 2008
Xx Xxxxxxx X Xxxxxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxxxx XX XXX 00000
0 Xxxxxxxxx Xxxxx
Xxxxxxxx XX XXX 00000
Dear Xxxx:
In light of the fact that changes need to be made to your existing employment letter agreement in
order to ensure compliance with Section 409A of the Internal Revenue Code of 1986, and to update
the terms of your employment to reflect HeartWare, Inc.’s (the “Company”) current employment
practices, we set forth below the terms and conditions of your continuing employment with us:
1. Position. Your title will be President & Chief Executive Officer and you will be appointed
as an Executive Director of HeartWare International, Inc. (the “Parent”). As such, you will be
responsible for, among other things, directing and leading Company and its executive management
team and otherwise perform such duties and responsibilities as are customarily assigned to
individuals serving in similar positions of other public companies. Without limitation, this
includes ultimate responsibility for the strategic direction, performance and execution of the
Company’s plans and strategies. You shall report directly to the Chairman of the Board of
Directors (the “Board”) of the Parent. Your usual place of business will be at the Company’s
offices in Framingham, Massachusetts.
2. Compensation. Your base salary shall be at the annual rate of $350,000, payable in
accordance with the Company’s payroll policies as from time to time in effect (“Base Salary”).
Your Base Salary will be reviewed annually by the Board and may be increased by the Board in its
discretion. Your Base Salary shall not be subject to reduction without your prior written consent
except that if the Board reduces the salary of all senior managers of the Company, the Base Salary
shall be reduced by the same percentage as the percentage reduction in salary of such senior
managers.
3. Annual Bonus. The Company may pay you an annual cash bonus of $75,000 based on your
performance (which may be measured by specific goals), as determined by the Board in its
discretion. The Company shall pay the annual cash bonus for a calendar year, if at all, on or
after January 1st, but by no later than March 15th, of the next year.
4. Vacation, Insurance and Benefits; Expenses.
(a) You shall be entitled to all legal holidays recognized by the Company, and 20 days of paid
vacation per annum. Any unused vacation shall be subject to Company policy as from time to time in
effect. Vacation days for the first fiscal year of your employment will be prorated.
(b) You shall be eligible for participation in any health, dental, and other insurance plans
that may be established and maintained by the Company from time to time for its employees of your
level, all as determined by the Board in its discretion. You shall also be entitled to participate
in any employee benefit programs that the Board may establish for Company employees generally,
including but not limited to health insurance, 401(k) Plan and stock purchase or option plans. The
Company’s employee benefit programs will be discussed during your orientation.
(c) The Company shall reimburse you for all usual and ordinary business expenses incurred by
you in the scope of your employment hereunder in accordance with the Company’s expense
reimbursement policy as from time to time in effect. In addition, the Company shall reimburse you,
on a monthly basis after receipt of appropriate documentation of the expense, for the cost of your
personal cell phone service.
5. Severance Pay.
The provisions of this Section 5 shall apply on and after January 1, 2009.
(a) If your employment is terminated by the Company without “Cause” (as defined below) or by
you for “Good Reason” (as defined below) other than in connection with a Change in Control (as
described below), and subject to the notice and release requirements described below, the Company
shall pay, beginning within 15 days after your termination of employment, (i) your Base Salary for
a period of 12 months, payable in accordance with the standard payroll practices then in effect for
active senior executives; and (ii) the employee portion of your COBRA continuation coverage (to the
extent that you elect coverage) for a period of 12 months or, if earlier, until you become entitled
to participate in another employer’s health plan.
(b) If your employment is terminated by the Company without “Cause” (as defined below) or by
you for “Good Reason” (as defined below) coincident with or within 18 months after a Change in
Control (as defined below), and subject to the notice and release requirements described below, the
Company shall cause to be paid, on or beginning within 15 days after your termination of
employment, (i) a lump-sum cash payment in an amount equal to 2 times your Total Salary; and (ii)
the employee portion of your COBRA continuation coverage (to the extent that you elect coverage)
for a period of 24 months or, if earlier, until you become entitled to participate in another
employer’s health plan. The severance pay provided under this Section 5(b) shall
supersede, and not be in duplication of, the severance pay provided under Section 5(a).
“Total Salary” means your then current Base Salary plus the most recent amount paid to you as your
Annual Bonus.
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(c) “Cause” means your: (i) material or persistent breach of this letter agreement; (ii)
engaging in any act that constitutes serious misconduct, theft, fraud, material misrepresentation,
serious dereliction of fiduciary obligations or duty of loyalty to the Company; (iii) conviction of
a felony, or a plea of guilty or nolo contendere to a felony charge or any criminal act involving
moral turpitude or which in the reasonable opinion of the Board brings you, the Board, the Company
or any affiliate into disrepute; (iv) neglect of or negligent performance of your duties under this
letter agreement; (v) willful, unauthorized disclosure of material confidential information
belonging to the Company, or entrusted to the Company by a client, customer, or other third party;
(vi) repeatedly being under the influence of drugs or alcohol (other than prescription medicine or
other medically related drugs to the extent that they are taken in accordance with their
directions) during the performance of your duties under this letter agreement, or, while under the
influence of such drugs or alcohol, engaging in grossly inappropriate conduct during the
performance of your duties under this letter agreement; (vii) repeated failure to comply with the
lawful directions of your immediate supervisor or the Board that are not inconsistent with the
terms of this letter agreement; or (viii) actual engagement in conduct that violates applicable
state or federal laws governing the workplace that could reasonably be expected to bring the
Company or any affiliate into disrepute. In order for the Company to terminate your employment for
Cause under any of clauses (i), (iv), (vi) or (vii) in the preceding sentence, the Company must
provide you with written notice of its intention to terminate employment for Cause and describing
the acts or omissions upon which such termination for Cause is based, and you shall be provided a
30-day period from the date of such notice within which to cure or correct such acts or omissions
if they are reasonably susceptible of cure or correction.
(d) “Good Reason” means the occurrence of any of the following without your consent:
(i) a material diminution in your Base Salary;
(ii) a material diminution in your authority, duties, or responsibilities;
(iii) a material diminution in the authority, duties, or responsibilities of
the supervisor to whom you are required to report, including a requirement that you
report to a corporate officer or employee instead of the Board;
(iv) a material diminution in the budget over which you retain authority; or
(v) any other action or inaction that constitutes a material breach by the
Company of any agreement under which you provide services.
Notwithstanding the above, no “Good Reason” exists unless (I) you notify the Company in writing
within 90 days after the initial existence of any condition listed above, and the Company fails to
cure the condition within 30 days after receiving notice, and (II) you terminate employment by no
later than 2 years after the initial existence of any condition listed above.
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(e) A “Change in Control” means the earliest to occur of any of the following events,
construed in accordance with section 409A of the Internal Revenue Code:
(i) Any one Person or more than one Person Acting as a Group (each as defined
below) acquires, or has acquired during the 12-month period ending on the date of
the most recent acquisition by such Person or Group, beneficial ownership of more
than a majority of the total fair market value or total voting power of the
then-outstanding securities of HeartWare International, Inc. (the “Parent”), a
Delaware corporation that is the ultimate parent company of the Company;
(ii) Any one Person or more than one Person Acting as a Group (each as defined
below) acquires, or has acquired during the 12-month period ending on the date of
the most recent acquisition by such Person or Group, the assets of the Parent that
have a total gross fair market value (as determined by the Board) of more than 50%
of the total gross fair market value of all of the assets of, as applicable, the
Parent immediately prior to the initiation of the acquisition; or
(iii) A majority of the members of the board of directors of the Parent is
replaced during any 12-month period by directors whose appointment or election is
not endorsed or approved by a majority of the members of the board who were members
of the board prior to the initiation of the replacement.
For purposes of this Section 5(e), a “Person” means any individual, entity or group within
the meaning of section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended,
other than (A) the Parent, (B) any trustee or other fiduciary holding securities under an employee
benefit plan of the Parent, or (C) any corporation owned, directly or indirectly, by the
stockholders of the Company Parent in substantially the same proportions as their ownership of
stock of the Parent. Persons will be considered to be “Acting as a Group” (or a “Group”) if they
are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of
stock, or similar business transaction with the corporation. If a Person owns stock in both
corporations that enter into a merger, consolidation, purchase or acquisition of stock, or similar
transaction, such stockholder is considered to be Acting as a Group with other stockholders only
with respect to the ownership in that corporation before the transaction giving rise to the change
and not with respect to the ownership interest in the other corporation. Persons will not be
considered to be Acting as a Group solely because they purchase assets of the same corporation at
the same time or purchase or own stock of the same corporation at the same time, or as a result of
the same public offering.
For purposes of this Section 5(e), section 318(a) of the Internal Revenue Code applies to
determine stock ownership. Stock underlying a vested option is considered owned by the individual
who holds the vested option (and the stock underlying an unvested option is not considered owned by
the individual who holds the unvested option). For purposes of the preceding sentence, however, if
a vested option is exercisable for stock that is not substantially vested (as defined by Treasury
regulation section 1.83 3(b) and (j)), the stock underlying the option is not treated as owned by
the individual who holds the option.
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(f) Your right to receive severance pay under this Section 5 is conditioned upon (i)
your signing and delivering to the Company, before any payment is due or scheduled to begin, a
general release of claims, in form and substance reasonably acceptable to the Company, by which you
release the Company from any claim arising from your employment by, or termination of employment
with, the Company, in consideration for the payment; and (ii) your compliance with Sections
7, 8, and 9 of this letter agreement. The Company shall make no payment before
the general release becomes effective upon the expiration of any applicable revocation period.
(g) Termination of employment, other than for Cause, by either you or the Company, requires 90
days’ prior written notice. The Company reserves the right to pay the portion of your compensation
attributable to the period for which the Company fails to satisfy the notice requirement described
above. Any such payment of compensation in lieu of notice will be paid in accordance with the
provisions of Section 5(a) or 5(b), as applicable.
(h) Notwithstanding the above, on termination of your employment (for whatever reason) you
shall be entitled to receive the pro rata portion of your Base Salary through the date of your
termination, together with such compensation or benefits to which you may be entitled by law or
under the terms of the Company’s compensation and benefit plans in effect including, without
limitation, amounts owed to you for unpaid vacation leave accrued during the course of your
employment with the Company.
6. At Will Employment.
(a) This letter agreement describes the compensation and benefits that you are entitled to
receive for so long as you remain employed by the Company, but is not a contract or guarantee of
employment for any particular period of time. At all times you will remain an employee at will,
and you and the Company are free to terminate your employment at any time for any reason.
(b) Should your employment with the Company be terminated by the Company for Cause, by you
without Good Reason, or as a result of your death or permanent disability or other physical or
mental incapacity, you shall be entitled to receive only the prorated portion of your Base Salary
through the date of your termination of employment, together with such other compensation or
benefits to which you may be entitled by law, the terms of this letter agreement, or under the
terms of the Company’s compensation and benefit plans then in effect.
(c) Upon termination of your employment you shall at the request of the Board immediately
resign without claim for compensation from any office which you hold of the Parent or its
subsidiaries or any affiliates. If you fail to provide such resignation, you irrevocably appoint
the Chairman of the Board as your attorney with the irrevocable right to sign any document on your
behalf for the purposes of, or to give effect to, your resignation under this clause.
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7. Noncompetition.
(a) You will not without the prior written consent of the Company or the Parent during your
employment either directly or indirectly in any capacity (including without limitation as
principal, agent, partner, employee, stockholder, unit holder, joint venturer, director, trustee,
beneficiary, manager, consultant, or advisor) carry on, advise, provide services to or be engaged,
concerned or interested in or associated with any Competitive Business (as defined below), or be
engaged or interested in any public or private work or duties which in the reasonable opinion of
the Board or the Parent, may hinder or otherwise interfere with the performance of your duties.
(b) You will not at any time in the 12 months after the termination of your employment (for
whatever reason) without the written consent of the Company or the Parent:
(i) on a worldwide basis directly or indirectly in any capacity (whether as
principal, agent, partner, employee, stockholder, unit holder, joint venturer,
director, trustee, beneficiary, manager, consultant, or advisor) carry on, advise,
provide services to or be engaged, concerned or interested in or associated with any
Competitive Business (as defined below); or
(ii) counsel, procure, or otherwise assist any person to do any of the acts
referred to in Section 7(b)(i).
Given that the business of the Company and the Parent is and is expected to continue to be
conducted on a worldwide basis, and you will be actively involved with and intimately familiar with
the business of the Company on a worldwide basis, you acknowledge and agree that more narrow
geographical limitations of any nature on this noncompetition covenant (and the nonsolicitation
covenant below) are therefore not appropriate and would not adequately protect the Company or the
Parent.
Nothing in this Section 7(b) prohibits you (whether directly or through nominees) of
holding shares listed on a recognized stock exchange, provided you do not hold more than 5% of the
issued capital of a company.
(c) “Competitive Business” means any business or activity which is involved in the research,
development, sale, distribution and/or marketing of mechanical circulatory assist devices.
8. Nonsolicitation. During your employment with the Company and for 12 months after your
termination of employment (for whatever reason), you shall not, directly or indirectly, on your own
behalf or on behalf of any third party, without the express written consent of the Company or the
Parent:
(a) canvass, solicit, target, induce or entice or endeavor to solicit, target, induce or
entice away from the Company or the Parent, or attempt to divert, reduce or take away, the business
or patronage (with respect to products or services of the kind or type developed, produced,
marketed, furnished or sold by the Company with which you were substantively involved during the
course of your employment with the Company) of, of any of the clients,
customers, vendors, suppliers or accounts, or prospective clients, customers, suppliers,
vendors or accounts of the Company or the Parent that you contacted, solicited or served while
employed by the Company or supplier to or in the habit of dealing with the Company or the Parent;
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(b) target, recruit, solicit, hire away, or otherwise interfere with the employment
relationship of, or endeavor to entice away, any employee of the Company or the Parent, or
otherwise induce any such employee to cease their relationship with the Company or the Parent; or
(c) counsel, procure or otherwise assist any person to do any of the acts referred to in
Section 8(a) or (b).
9. Nondisparagement. You shall not, while employed by the Company or at any time after your
termination of employment, directly, or through any other personal entity, make any public or
private statements that are disparaging of the Company or the Parent, their respective businesses
or employees, officers, directors, or stockholders. The Company agrees that, after your
termination of employment with the Company for any reason, it will refrain from making any public
statements that disparage you. The Company’s obligations under this Section 9 extend only
to the then-current officers and members of the Board, and only for so long as those individuals
are officers or directors of the Company. Nothing herein shall be deemed to prevent you or the
Company from complying with their respective legal obligations or responding to a subpoena or other
court order.
10. Proprietary Information. Both during and after your employment with the Company, you will
treat all proprietary or other confidential information as strictly confidential. Further, you
agree to sign and comply with the terms and conditions of the enclosed Proprietary Information,
Confidentiality, and Inventions Assignment Agreement, which is incorporated by reference into
this letter agreement. This offer of continued employment is contingent upon your signing that
agreement.
11. Injunctive Relief: Clawback. You recognize and acknowledge that it would be difficult to
ascertain the damages arising from a breach or threatened breach of the covenants set forth in
Sections 7 (noncompetition), 8(nonsolicitation), 9 (nondisparagement), and
10 (proprietary information) and that any such breach or threatened breach could result in
irreparable harm to the Company. You therefore agree that, notwithstanding anything in this letter
agreement to the contrary, including but not limited to the forfeiture and clawback provision
below, the Company shall have the right to an injunction or other equitable relief in any court of
competent jurisdiction, enjoining any such breach, without prior notice to you and without the
posting of a bond or other guarantee, to enforce this letter agreement. You hereby waive any and
all defenses you may have on the ground of lack of jurisdiction or competence of the court to grant
such an injunction or other equitable relief. The existence of this right shall not preclude any
other rights and remedies at law or in equity that the Company may have. The provisions of
Section 11 shall survive termination of this letter agreement and/or your employment with
the Company. The existence of a claim or cause of action of any kind by you against the Company
shall not constitute a defense to the enforcement by the Company of the rights provided in this
Section 11 and shall not be a defense to any injunction proceeding. In addition,
notwithstanding anything herein to the contrary, if the Board, in its discretion,
determines that you have engaged in any activity that contravenes any covenant set forth in
Section 7, 8, 9 or 10, you shall forfeit any amount payable under
Section 5 (severance pay), and you agree to repay the Company, within 30 days after you
receive notice of the Board’s determination, any amount previously paid by the Company under
Section 5.
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12. Blue Pencil; Severability. If any provision of this letter agreement is construed by a
court of competent jurisdiction to be invalid or unenforceable, that construction does not affect
the remainder of this agreement, which is to be given full force and effect without regard to the
invalid or unenforceable provision. Any invalid or unenforceable provision is to be reformed to
the maximum time, geographic and/or business limitations permitted by applicable laws, so as to be
valid and enforceable.
13. Waivers. No delay or omission by the Company in exercising any right under this letter
agreement operates as a waiver of that or any other right. The Company’s waiver or consent on any
one occasion is effective only for that occasion and is not be construed as a bar or waiver of any
right on any other occasion.
14. Federal Employment Law. Please note that Federal law requires you to provide the Company
with documentation of your identity and eligibility to work in the United States. In addition, the
Company verifies the validity of social security numbers. Accordingly, this offer is further
conditioned upon your providing the required documentation to the Company within three business
days after your start date. A list of the required documentation will be provided during your
orientation.
15. Prior Employers. By accepting this offer of employment, you are representing that you are
not party to any agreement with any prior employer that prevents your working for the Company or
that would prevent you from performing your assigned duties for the Company.
16. Background Check. The Company reserves the right to conduct a background check of its
employees, and your employment may be conditioned on satisfactory results.
17. Tax Withholding. The Company may withhold from any amounts payable under this letter
agreement such federal, state, local or foreign income and employment taxes as shall be required to
be withheld under applicable law.
18. Section 409A Compliance. The following rules relate to section 409A of the Internal
Revenue Code of 1986 and any regulations and Treasury guidance promulgated thereunder (“Section
409A”), which govern deferred compensation:
(a) This letter agreement is intended to comply with, or otherwise be exempt from, Section
409A.
(b) The Company shall undertake to administer, interpret, and construe this letter agreement
in a manner that does not result in the imposition on you of any additional tax, penalty, or
interest under Section 409A.
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(c) The Company and you agree to execute any and all amendments to this letter agreement
permitted under applicable law, as mutually agreed in good faith, as may be necessary to ensure
that this letter agreement complies with Section 409A.
(d) The preceding provisions, however, shall not be construed as a guarantee by the Company of
any particular tax effect to you under this letter agreement. The Company shall not be liable to
you for any payment made under this letter agreement that is determined to result in an additional
tax, penalty, or interest under Section 409A, nor for reporting in good faith any payment made
under this letter agreement as an amount includible in gross income under Section 409A.
(e) For purposes of Section 409A, the right to a series of installment payments under this
letter agreement shall be treated as a right to a series of separate payments.
(f) With respect to any reimbursement of expenses of, or any provision of in-kind benefits to,
you, as specified under this letter agreement, such reimbursement of expenses or provision of
in-kind benefits shall be subject to the following conditions: (i) the expenses eligible for
reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the
expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable
year, except for any medical reimbursement arrangement providing for the reimbursement of expenses
referred to in section 105(b) of the Internal Revenue Code; (ii) the reimbursement of an eligible
expense shall be made no later than the end of the year after the year in which such expense was
incurred; and (iii) the right to reimbursement or in-kind benefits shall not be subject to
liquidation or exchange for another benefit.
(g) “Termination of employment,” or words of similar import, as used in this letter agreement
means, for purposes of any payments under this letter agreement that are payments of deferred
compensation subject to Section 409A, your “separation from service” as defined in Section 409A.
(h) If a payment obligation under this letter agreement arises on account of your separation
from service while you are a “specified employee” (as defined under Section 409A and determined in
good faith by the Board), any payment of “deferred compensation” (as defined under Treasury
regulation section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury regulation
sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six months after such
separation from service shall accrue without interest and shall be paid within 15 days after the
end of the six-month period beginning on the date of such separation from service or, if earlier,
within 15 days after the appointment of the personal representative or executor of your estate
following your death.
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19. Indemnification. Except in the case of negligence, fraud, embezzlement or
misrepresentation the Company hereby agrees to indemnify and hold harmless Executive to the fullest
extent permitted by Section 145 of the Delaware General Corporation Law and to cause any parent or
subsidiary of the Company (including, without limitation, the Parent) to indemnify and hold you
harmless to the fullest extent permitted by the provisions of the laws of the jurisdiction of its
incorporation against any liability, loss or expense (including reasonable attorney’s fees and
costs incurred in defense of such claims) incurred in connection with the your
services as an officer or director of the Company or any of its subsidiaries or affiliates,
including the Parent, if in each of the foregoing cases, (i) you acted in good faith and in a
manner you believed to be in, or not opposed to, the best interests of the Company, and, with
respect to any criminal proceeding, had no reasonable cause to believe your conduct was unlawful,
and (ii) your conduct did not constitute gross negligence or willful or wanton misconduct. Without
limitation of the foregoing, this Section 19 shall be deemed to grant to the you the rights to
indemnification provided by the Company’s and the Parent’s certificate of incorporation and
by-laws, as currently constituted, regardless of any subsequent amendment or modification of the
applicable provisions of such instruments, with such provisions being deemed incorporated herein by
reference. The Company shall advance or cause its subsidiaries to advance all expenses (including
all reasonable legal fees and expenses) reasonably incurred by you in defending any such claim,
action or proceeding, whether civil, administrative, criminal or otherwise, brought against you in
your capacity as an officer of director of the Company or any of its subsidiaries or affiliates,
including the Parent, to the fullest extent permitted under applicable law, provided Executive
provides an undertaking pursuant to which he agrees to repay all such advances if it is ultimately
determined that you are not entitled to indemnification under the circumstances.
Notwithstanding anything else contained in this letter agreement, the above shall not apply
where the liability, loss or expense (including reasonable attorney’s fees and costs incurred in
defense of such claims) incurred by you arise as a result, directly or indirectly, of any claim or
action taken against you by the Company, the Parent or any of their respective subsidiaries or
affiliates.
20. Successors, Binding Agreement. This letter agreement shall not be assignable by you.
This letter agreement may be assigned by the Company to any affiliate or to any other person that
is a successor in interest to all or substantially all of the business operations of the Company.
This letter agreement shall be binding upon, and inure to the benefit of, the parties hereto and
their respective successors, heirs and permitted assigns.
21. Governing Law. This letter agreement shall be governed in all respects, including as to
validity, interpretation and effect, by the laws of the Commonwealth of Massachusetts, without
regard to its conflict of laws principles.
22. Entire Agreement, Amendments. This letter agreement, including the proprietary
information, confidentiality, and inventions assignment agreement incorporated herein by reference,
sets forth the entire agreement between you and the Company regarding your employment with the
Company and supersedes all prior agreements or other understandings, whether written or oral,
express or implied, between the parties to the extent that such agreements or understandings
contain provisions addressed herein; provided, however, that the severance pay provisions under
your employment letter agreement with the Company in effect as of the date of this letter agreement
shall continue to apply, in lieu of the severance pay provisions set forth in this letter
agreement, until January 1, 2009. This letter agreement may not be amended or modified except by a
written agreement executed by the parties hereto or their respective successors and legal
representatives.
* * * *
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To indicate your acceptance of these updated terms and conditions of your employment, please sign
and return the following to me no later than date that is one week after date of offer letter:
| • | one copy of this letter, and | ||
| • | one copy of the Company’s standard Proprietary Information, Confidentiality, and Inventions Assignment Agreement, the form of which is annexed hereto as Exhibit A. |
This is a great opportunity for both you and the Company, and we look forward to having you
continue as a member on our team.
| Sincerely, HEARTWARE, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Chairman | |||
| Agreed to and accepted: |
||||
| /s/ Xxxxxxx X. Xxxxxxxx | ||||
| Xxxxxxx X Xxxxxxxx | ||||
Dated: December 5, 2008
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Exhibit A
Form of Proprietary Information, Confidentiality, and Inventions Assignment Agreement
