Exhibit 10.17
4 SEPTEMBER 2006
HEARTWARE LIMITED
XXXXXX XXXXXXXXX
DEED OF RELEASE
DATE 4 SEPTEMBER 2006
PARTIES
HeartWare United (ACN 111 970 256) of Xxxxx 00, 0 Xxxx Xxxxxx, Xxxxxx in
the State of New South Wales (COMPANY); and
Xxxxxx XxXxxxxxx of Xxxx 0, 0 Xxxx Xxxx Xxxx Xxx in the State of New South
Wales (EXECUTIVE)
BACKGROUND
A. The Executive commenced employment with the Company on or about 27 January
2005 (EMPLOYMENT).
B. The Executive and the Company are parties to an Executive Service Agreement
dated 15 December 2004 (EMPLOYMENT AGREEMENT).
C. On 4 September 2006, the Executive resigned from the Employment with the
Company (RESIGNATION) effective on 9.30 am Australian Eastern Standard time
on the date of this Deed (RESIGNATION TIME).
D. The parties have agreed that the Employment will terminate with effect from
the Resignation Time in accordance with the provisions of this Deed.
E. During the Employment, the Executive participated in the Company's Share
Option Plan (ESOP).
AGREED TERMS
1 INTERPRETATION
1.1 DEFINITIONS
In this document:
BOARD means the board of directors of the Company
BUSINESS DAY means any day which is not Saturday, Sunday or a public
holiday in New South Wales.
CLAIMS means all claims, demands, suits, causes of action, damages, debts,
costs, verdicts and judgments whatsoever whether at law or in equity or
under any statute.
CONFIDENTIAL INFORMATION means all documents, submissions, data and
material stored by electronic or other means on which is recorded
information prepared for or on behalf of the Company which is confidential,
secret or unavailable to the general public in relation to any matter
pertaining to the business or affairs of the Group, including (but not
restricted to) all business plans, diaries, planning information,
programming information, marketing information, statistics, financial
accounts, documents, papers, information relating to sub-contractors, board
minutes, management records, client lists and minutes of meeting (and
including copies of all of the above).
GROUP means the Company and all of the directors, officers, employees,
shareholders and agents of the Company and all Related Companies of the
Company and their directors, officers, employees and agents.
RELATED COMPANY means a related body corporate as defined in the
Corporations Xxx 0000.
REMUNERATION PACKAGE means the aggregate dollar value of all of the Items
of remuneration or benefit referred to in CLAUSE 4.1 that the Executive:
(a) would have been entitled to receive if the Employment had continued up
to and including the first anniversary of the Resignation Time; and
(b) that has accrued up to and including the Resignation Time and to which
the Executive is entitled, but which he has not received.
ANNEXURE A is indicative of the aggregate dollar value referred to above.
RESTRICTION AGREEMENT means the Restriction Agreement signed by the
Executive and the Company.
1.2 CONSTRUCTION
Unless expressed to the contrary, in this document:
(a) words importing the singular include the plural and vice versa;
(b) if a word or phrase is defined, cognate words and phrases have
corresponding definitions;
(c) a reference to:
(i) a person includes a firm, unincorporated association, corporation
and a government or statutory body or authority;
(ii) a person includes its legal personal representatives, successors
and assignees;
(iii) a party shall include that party's heirs, successors and
permitted assignees;
(iv) a statute, ordinance, code or other law includes regulations and
other statutory instruments under it and consolidations,
amendments, re-enactments or replacements of any of them;
(v) a right includes a benefit, remedy, discretion, authority or
power;
(vi) an obligation includes a warranty or representation and a
reference to a failure to observe or perform an obligation
includes a breach of warranty or representation;
(vii) provisions or terms of this Deed or another Deed, agreement
understanding or arrangement include a reference to both express
and implied provisions and terms;
(viii) writing includes any mode of representing or reproducing words
in tangible and permanently visible form, and includes facsimile
transmission; and
(ix) any thing (including, without limitation, any amount) is a
reference to the whole or any part of it and a reference to a
group of things or persons is a reference to any one or more of
them.
1.3 HEADINGS
Headings do not affect the interpretation of this Deed.
2 RESIGNATION BY EXECUTIVE
2.1 RESIGNATION
The Executive, as conclusively evidenced by his signature of this Deed,
gives to the Company notice of his resignation from and the termination of
the Employment, effective on the Resignation Time.
2.2 PAYMENTS AS A CONSEQUENCE OF THE RESIGNATION
Subject to the Executive complying with his obligations under the
provisions of this Deed, the Company:
(a) will pay to the Executive on or before 5.00 pm Australian Eastern
Standard time on Wednesday 6 September, 2006and by way of direct
deposit to a bank account nominated by the Executive the Remuneration
Package (including superannuation contributions), taxable as an
eligible termination payment (less any necessary deductions for tax);
and
(b) will pay to or for the benefit of the Executive and promptly after
receipt from the Executive of satisfactory documentary evidence,
including tax invoices or receipts:
(i) all expenses that he has paid for or incurred in the course of
the Employment or otherwise with the prior written consent of the
Board;
(ii) all expenses that he has paid or incurred as a result of the loss
if the Executive's luggage and other personal effects, on or
about June 2006 in the course of an overseas trip in the course
of the Employment, which aggregate amount the Executive
represents will be approximately A$9,000.00; and
(iii) the sum of A$8,000.00 in connection with the legal expenses and
disbursements that the Executive has or may incur as a result of
the Resignation and the termination of the Employment.
2.3 Payment of the Remuneration Package in accordance with the provisions of
clause 2.2(a) will be made by wave of electronic transfer into either or
both:
(a) the Designated Bank Account; or
(b) the Executive's nominated superannuation account,
as directed in writing by the Executive, so long as the aggregate of all
payments made by the Company in accordance with this clause 2.3 and clause
2.2(a) does not exceed the Remuneration Package.
2.4 D & O INSURANCE FOR THE EXECUTIVE
The Company undertakes to the Executive that it will maintain at the
Company's expense, directors and officers insurance with a reputable and
solvent insurer, for the benefit of the Executive until the sixth
anniversary of the Resignation Time and otherwise on terms and condition
that are essentially as favourable for the Executive as any analogous
insurance that is maintained throughout the abovementioned period in
respect of any other current or future member of the Board.
2.5 Without limiting clause 2.2, the Executive agrees, acknowledges and where
relevant undertakes to and in favour of the Company, that:
(a) the Company will not be liable to pay, or indemnify or compensate the
Executive or any other person for the payment of or in connection
with, any and all taxes, duties, imposts, charges or fees that may be
or become payable in connection with the Remuneration Package or any
other amount that may be payable under the provisions of this Deed;
and
(b) he will be obliged to assist, in a co-operative and timely manner, the
Company to claim and recover all such amounts that it is or may become
entitled to claim and recover, from its insurers or otherwise, in
connection with any payments made by the Company in accordance with
clause 2.2(b)(iii).
3 OPTIONS
3.1 ACKNOWLEDGEMENT
The parties acknowledge that:
(a) the first tranche of options granted to the Executive pursuant to the
Employment Agreement will have vested (VESTED OPTIONS) and may be
exercised by the Executive subject to the terms of this Deed, the ESOP
and the Restriction Agreement; and
(b) for the sake of clarity, each Vested Options will lapse and be of no
further value, force or effect if it is not exercised on or before
5.00 pm Australian Eastern Standard time on 2 October, 2006 and
otherwise in accordance with the provisions of this ESOP and the
Restriction Agreement
3.2 DISPOSAL OF SHARES
(a) Subject to the provisions of the ESOP and the Restriction Agreement,
the parties agree to use their best endeavours to effect an orderly
sell down of any ordinary shares in the Company issued to the
Executive as a result of the exercise of a Vested Option (SHARES).
(b) The Executive agrees that if the Executive seeks to exercise a Vested
Option or the sale of a Share in breach of the provisions of the ESOP
or the Restriction Agreement, the Company will be entitled to place a
holding lock on any and all Shares and that the Executive will not
dispose of or deal with any Shares the subject of a holding lock other
than in accordance with this clause 3.2.
4 RELEASE
4.1 The Executive hereby releases and discharges each and all members of the
Group from all Claims (other than claims in respect of workers
compensation) which the Executive has or which but for this Deed could,
would or might at any time hereafter have or have had against any member of
the Group in respect of or arising out of, either directly or indirectly,
the Employment Agreement, the Employment or the Resignation (including
termination of the Employment) including but not limited to any Claims in
respect of:
(a) annual leave entitlements;
(b) long service leave entitlements;
(c) notice of termination of the employment or payment in lieu of notice;
(d) redundancy or severance pay;
(e) salary;
(f) any entitlement under an award, enterprise agreement or other
registered or unregistered industrial agreement including without
limitation in respect of wages, allowances, penalties, notice,
redundancy payments, severance payments and loadings;
(g) superannuation;
(h) options, stocks or shares, other than any rights that the Executive
may retain under the ESOP;
(i) performance or incentive payments, commissions, bonus payments or
drawings;
(j) dividends;
(k) any other remuneration or employment benefits;
(l) loss of reputation, stress, humiliation or embarrassment; or
(m) discrimination, harassment, sexual harassment, victimisation or
vilification.
4.2 Subject to CLAUSE 6, the Company hereby releases and discharges the
Executive from all Claims (with the exception of Claims arising as a result
of the Executive's serious misconduct and/or fraudulent conduct) which the
Company has or which but for this Deed could, would or might at anytime
hereafter have or have had against the Executive in respect of or arising
out of, either directly or indirectly, the Employment Agreement, the
Employment or the Resignation.
5 BAR TO PROCEEDINGS
The parties agree that this Deed may be pleaded by the Executive or any
member of the Group as an absolute bar in any court of law, arbitral
tribunal or otherwise in response to any proceedings or Claim whatsoever
brought by either party arising out of or touching on or concerning the
matters referred to or contained in this Deed.
6 CONFIDENTIAL INFORMATION AND NON-DISCLOSURE OF DOCUMENT
6.1 Without in any way limiting the continuing obligations of the Executive
arising from the Employment and under the Employment Agreement, with
respect to the Company's confidential information, the Executive hereby
covenants with the Company that the Executive will not use or disclose any
Confidential Information whatsoever (and without limiting the generality of
the foregoing to any company, associate or partner or company in which the
Executive may hold office at any time) except as required by law.
6.2 The Executive further covenants that the Executive will take all action
reasonably necessary to maintain the confidentiality of any such
Confidential Information which is known to the Executive or of which the
Executive becomes aware after the date hereof. This clause will not apply
to any information that becomes generally available to the public (other
than by the Executive in breach of this clause).
6.3 The parties agree that they will not disclose the terms of this Deed to any
person other than their legal or financial advisers, or immediate family
members on the condition that they are required to keep the terms of this
Deed confidential, or as may be required by law.
7 NON DISPARAGEMENT
7.1 The Executive will not, and will not procure, authorise, instruct or permit
any other person to, disparage the Company or any member of the Group or
make any statement or publication, whether oral or in writing which is
critical of the Company or any other member of the Group, or does or is
likely to, bring the Group or any of its members into disrepute or ridicule
or otherwise adversely affect their reputations.
7.2 The Company will not, and will not procure, authorise, instruct or permit
any other person to, authorise or cause another person to make any
statement or publication, whether oral or in writing which is critical of
the Executive, or does, or is likely to bring the Executive into disrepute
or ridicule or otherwise adversely affect his reputation.
8 RETURN OF COMPANY PROPERTY
8.1 The Executive agrees to immediately deliver up to the Company all property
belonging to the Company which is in the Executive's possession, custody or
control.
8.2 The Company agrees to immediately deliver to the Executive all property
belonging to the Executive which is in the possession, custody or control
of the Company or any other member of the Group.
9 WARRANTIES
The Executive warrants that:
(a) the Executive has voluntarily entered into this Deed;
(b) other than as set out in this Deed, the Company has not made any
promises, representations or inducements to the Executive to enter
into this Deed;
(c) the Executive has had full opportunity to consult with and has
consulted with, the Executive's legal advisers concerning the nature,
effect and extent of this Deed and the Resignation; and
(d) the Executive is aware that the Company is relying on these warranties
in executing this Deed.
10 MISCELLANEOUS
10.1 GOVERNING LAW AND JURISDICTION
(a) This Deed is governed by and is to be construed in accordance with the
laws in force in New South Wales.
(b) Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of New South Wales and any
courts which have jurisdiction to hear appeals from any of those
courts and waives any right to object to any proceedings being brought
in those courts.
10.2 SEVERABILITY
Any provision of this Deed which is or becomes illegal, void or
unenforceable is severable, and such provision will be ineffective to the
extent only of such illegality, voidness or enforceability and will not
invalidate the remaining provisions.
10.3 AMENDMENT
This Deed may only be varied or replaced by a Deed duly executed by both
the parties.
10.4 WAIVER AND EXERCISE OF RIGHTS
(a) A single or partial exercise or waiver of a right relating to this
Deed will not prevent any other exercise of that right or the exercise
of any other right.
(b) A party will not be liable for any loss, cost or expense of any other
party caused or contributed to by the waiver, exercise, attempted
exercise, failure to exercise or delay in the exercise of a right.
10.5 FURTHER ASSURANCE
Each party shall promptly execute all deeds and do all things that any
other party from time to time reasonably requires of it to effect, perfect
or complete the provisions of this Deed and any transaction contemplated by
it.
10.6 COUNTERPARTS
This Deed may consist of a number of counterparts and if so the
counterparts taken together constitute one and the same document.
10.7 ENTIRE DEED
(a) This Deed embodies the entire understanding and agreement between the
parties as to the subject matter of this Deed.
(b) All previous negotiations, understandings, representations,
warranties, memoranda or commitments in relation to, or in any way
affecting, the subject
matter of this Deed are merged in and superseded by this Deed and are
of no force or effect whatever and no party will be liable to any
other party in respect of those matters. However, for the avoidance of
doubt clauses 12, 13, 15, 16 and 17 of the Employment Agreement are
not merged in and superseded by this Deed and continue to have full
force and effect.
(c) No oral explanation or information provided by any party to another.
(i) affects the meaning or interpretation of this Deed; or
(ii) constitutes any collateral agreement, warranty or understanding
between any of the Parties.
EXECUTED as a Deed.
EXECUTED by HeartWare Limited in )
accordance with its constitution: )
)
/s/ /s/ Xxxxxx Xxxx Xxxxxx
------------------------------------- ----------------------------------------
Company Secretary/Director Director
Xxxxxx Xxxx Xxxxxx
------------------------------------- Name of Director (print)
Name of Company Secretary/Director
(print)
SIGNED SEALED AND DELIVERED )
by Xxxxxx XxXxxxxxx in the )
presence of: )
/s/ Xxxxx Xxxxxx /s/ Xxxxxx XxXxxxxxx
------------------------------------- ----------------------------------------
Witness
Xxxxx Xxxxxx
Name of Witness (print)
ANNEXURE A
REMUNERATION PACKAGE
ANNUAL
LEAVE NOTICE TOTAL
------------ ---------- ----------
Total 35,212.86 470,000.00 505,212.86
Total super
payment 35,212.86 470,000.00 505,212.86
Taxed at rate 41.35% 31.50%
Tax applicable 14,560.52 148,050.00 162,610.52
--------- ---------- ----------
Net payment
Super payment 20,652.34 321,950.00 342,602.34
--------- ---------- ----------
Total payment 20,652.34 321,950.00 342,602.34
--------- ---------- ----------
