exv10w1






Exhibit 10.1




SUPPORT AGREEMENT




     This SUPPORT AGREEMENT (the “Agreement”), dated as of February 12, 2009, is entered
into by and between the undersigned stockholder (“Stockholder”) of HeartWare International,
Inc., a Delaware corporation (the “Company”), and Thoratec Corporation, a California
corporation (“Parent”).



     WHEREAS, concurrently with the execution of this Agreement, the Company, Parent, Thomas Merger
Sub I, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger
Subsidiary”) and Thomas Merger Sub II, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent (“Merger Subsidiary Two”), are entering into an Agreement and Plan of
Merger (as the same may be amended from time to time, the “Merger Agreement”), providing
for the merger of Merger Subsidiary with and into the Company (the “Merger”), with the
Company continuing as the surviving corporation (the “Intermediate Surviving Corporation”)
and the merger of the Intermediate Surviving Corporation with and into Merger Subsidiary Two, with
Merger Subsidiary Two as the surviving corporation (the “Second Merger” and together with
the Merger, the “Mergers”) pursuant to the terms and subject to the conditions set forth in
the Merger Agreement;



     WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has
requested that Stockholder make certain representations, warranties, covenants and agreements with
respect to the shares of common stock, par value $0.001 per share, of the Company (the “Common
Stock”) and/or CHESS Depositary Interests representing shares of Common Stock (collectively,
with the Common Stock, the “Shares”) beneficially owned by Stockholder and set forth
opposite Stockholder’s name on Schedule A attached hereto (the “Stockholder
Shares”); and



     WHEREAS, in order to induce Parent to enter into the Merger Agreement, Stockholder is willing
to make certain representations, warranties, covenants and agreements with respect to the
Stockholder Shares as set forth herein;



     NOW, THEREFORE, in consideration of the promises contained herein and for other good and
valuable consideration, the receipt, sufficiency and adequacy of which is hereby acknowledged, the
parties hereto agree as follows:



          1. Representations of Stockholder. Stockholder represents and warrants to Parent that
(a) Stockholder beneficially owns all of the Stockholder Shares free and clear of any lien,
encumbrance or restriction and, except pursuant to this Agreement, there are no rights, agreements
or commitments to which Stockholder is a party relating to the pledge, disposition or voting of any
Shares, and there are no voting trusts or voting agreements with respect to the Stockholder Shares,
(b) Stockholder does not beneficially own any Shares other than the Stockholder Shares and (c)
Stockholder has full power and authority to enter into, execute and deliver this Agreement and to
perform fully Stockholder’s obligations hereunder, and no permit, authorization, consent or
approval from any Person is necessary therefor. Stockholder further represents and warrants to
Parent that this Agreement has been duly executed and delivered by




 









 







Stockholder and constitutes the legal, valid and binding obligation of Stockholder enforceable
against Stockholder in accordance with its terms.




          2. Representations of Parent. Parent represents and warrants to Stockholder that (a)
Parent has full power and authority to enter into, execute and deliver this Agreement and to
perform fully Parent’s obligations hereunder and no permit, authorization, consent or approval from
any Person is necessary therefore and (b) this Agreement has been duly executed and delivered by
Parent and constitutes the legal, valid and binding obligation of Parent enforceable against Parent
in accordance with its terms.




          3. Agreement to Vote Shares. From the date of this Agreement to the earliest to occur
of (a) the date upon which the Merger Agreement is validly terminated, (b) the Effective Time of
the Merger, (c) the date following receipt of the Company Stockholder Approval, (d) the date that
any material amendment shall be made to the Merger Agreement (a “material amendment” shall mean any
valid written amendment to the Merger Agreement reducing the consideration payable to Stockholder
pursuant to the Merger Agreement and any other valid written amendment to the Merger Agreement that
would materially delay the consummation of the Merger) without the written consent of Stockholder
and (e)(i) any amendment to the Articles of Incorporation or Bylaws (whether by merger,
consolidation or otherwise) of Parent in any manner that would have a disparate effect on holders
of Shares, as holders of Parent Stock at and following the Effective Time, relative to other
holders of Parent Stock, and (ii) any amendment to the Articles of Incorporation of Parent to
provide for any class of capital stock with rights to distributions or upon a liquidation
(including upon a merger, consolidation, asset sale or similar transaction) that are superior to
those of the Parent Stock, other than an amendment in connection with a shareholder rights plan,
“poison pill” anti-takeover plan or other similar device (the earliest of such to occur being the
“Voting Covenant Expiration Date”), Stockholder shall, and shall cause any holder of record
of the Stockholder Shares or any New Shares (as defined in Section 9 hereof) to vote, or
cause to be voted, the Stockholder Shares and any New Shares (i) in favor of (A) adoption of the
Merger Agreement, (B) any other action in furtherance thereof; provided, that such action does not
require a material amendment to the Merger Agreement to which Stockholder has not consented, and
(C) any adjournment or postponement recommended by the Company with respect to any stockholder
meeting concerning the Merger Agreement and the Mergers and (ii) against any Acquisition Proposal
and any action or agreement that would result in a breach of any representation, warranty, covenant
or obligation of the Company in the Merger Agreement or impair the ability of the Company to
consummate the Merger. In addition, Stockholder agrees not to take, or commit or agree to take,
any action inconsistent with the foregoing.




          4. No Voting Trusts or Other Arrangements. Except as otherwise set forth herein,
Stockholder agrees that Stockholder will not, and will not permit any entity under Stockholder’s
control to, deposit any of the Stockholder Shares or any New Shares in a voting trust, grant any
proxies or power of attorney with respect to the Stockholder Shares or any New Shares or subject
any of the Stockholder Shares or any New Shares to any arrangement with respect to the voting of
the Stockholder Shares or any New Shares other than agreements entered into with Parent.




2









 








          5. No Solicitations. Stockholder agrees that Stockholder will not, and will not
permit any entity under Stockholder’s control or any of its or their respective officers,
directors, employees, agents or other representatives to, (a) solicit proxies or become a
“participant” in a “solicitation”, as such terms are defined in Regulation 14A under the Securities
and Exchange Act of 1934, as amended (the “Exchange Act”), in opposition to or competition
with the consummation of the Mergers or otherwise encourage or assist any party in taking or
planning any action which would reasonably be expected to compete with, impede, interfere with or
attempt to discourage the consummation of the Mergers or inhibit the timely consummation of the
Mergers in accordance with the terms of the Merger Agreement, (b) directly or indirectly encourage,
initiate or cooperate in a stockholders’ vote or action by consent of the Company’s stockholders in
opposition to or in competition with the consummation of the Mergers, (c) become a member of a
“group” (as such term is used in Rule 13d-5 under the Exchange Act) with respect to any voting
securities of the Company for the purpose of opposing or competing with the consummation of the
Mergers or (d) unless required by applicable law, make any press release, public announcement or
other non-confidential communication with respect to the business or affairs of the Company or
Parent, including this Agreement and the Merger Agreement and the transactions contemplated hereby
and thereby, without the prior written consent of Parent.




          6. Waiver of Appraisal and Dissenters’ Rights and Actions. Stockholder hereby (a)
waives and agrees not to exercise any rights of appraisal or rights to dissent from the Mergers
that Stockholder may have and (b) agrees not to commence or participate in, and to take all actions
necessary to opt out of any class in any class action with respect to, any claim, derivative or
otherwise, against Parent, Merger Subsidiary, Merger Subsidiary Two, the Company or any of their
respective successors relating to the negotiation, execution or delivery of this Agreement or the
Merger Agreement or the consummation of the Mergers, including any claim (i) challenging the
validity of or seeking to enjoin the operation of any provision of this Agreement or (ii) alleging
a breach of any fiduciary duty of the Board of Directors of the Company in connection with the
Merger Agreement or the transactions contemplated thereby.




          7. Stockholder Capacity. Notwithstanding anything to the contrary set forth herein,
Stockholder is entering into this Agreement solely in Stockholder’s capacity as the beneficial
owner of the Stockholder Shares and New Shares, as applicable, and nothing in this Agreement shall
prevent Stockholder from taking any action or omitting to take any action in Stockholder’s capacity
as a member of the Board of Directors of the Company or any of its subsidiaries (or any committee
thereof) or as an officer or employee of the Company or any of its subsidiaries, in either case as
applicable or as may become applicable to Stockholder. If Stockholder is an officer of director of
the Company, any action taken by Stockholder in Stockholder’s capacity as an officer or director of
the Company (but, for the avoidance of doubt, excluding any action taken by Stockholder in
Stockholder’s capacity as a holder or beneficial owner of any Shares) will not be deemed to
constitute a breach of this Agreement, regardless of the circumstances related thereto.




          8. Transfer and Encumbrance. During the period from the date hereof through the Voting
Covenant Expiration Date, except as otherwise expressly contemplated by this Section 8,
Stockholder agrees not to transfer, sell, offer, exchange, pledge or otherwise dispose of or
encumber any of the Stockholder Shares or New Shares and not to enter into any



3









 






contract, agreement or arrangement with respect to any of the foregoing, and any such transfer
shall be null and void and of no effect. This Section 8 shall not prohibit a transfer of
any Stockholder Shares or New Shares by Stockholder (a) to any member of Stockholder’s immediate
family, or to a trust for the benefit of Stockholder or any member of Stockholder’s immediate
family, (b) upon the death of Stockholder, or (c) to the extent required to pay taxes resulting
from the vesting of any stock awards for Shares or the exercise of any stock options within 60 days
prior to their expiration or (d) to the extent required to effect a net or cashless exercise of any
stock option within 60 days prior to their expiration; provided, however, that a
transfer referred to in this sentence, other than a transfer in accordance with the foregoing
clause (c) or (d), shall be permitted only if, as a precondition to such transfer, the proposed
transferee agrees in writing, reasonably satisfactory in form and substance to Parent, to be bound
by the terms of this Agreement with respect to all of the Stockholder Shares or New Shares so
transferred.




          9. Additional Purchases. Stockholder agrees that (a) all Shares that Stockholder
purchases, acquires the right to vote or share in the voting of, or otherwise acquires beneficial
ownership of, including upon the exercise of options to purchase Shares, after the execution of
this Agreement and (b) all Shares which Stockholder owns beneficially or of record but has not
included as Stockholder Shares as of the date hereof for any reason (all such Shares collectively,
“New Shares”), shall be subject to the terms of this Agreement to the same extent as if
they constituted Stockholder Shares as of the date hereof.




          10. Specific Performance. Each party hereto acknowledges that it will be impossible
to measure in money the damage to the other party if a party hereto fails to comply with any of the
obligations imposed by this Agreement, that every such obligation is material and that, in the
event of any such failure, the other party will not have an adequate remedy at law or damages.
Accordingly, each party hereto agrees that injunctive relief or other equitable remedy, in addition
to remedies at law or damages, is the appropriate remedy for any such failure and will not oppose
the granting of such relief on the basis that the other party has an adequate remedy at law. Each
party hereto agrees that it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with any other party’s seeking or obtaining such equitable relief.




          11. Remedies. All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative and not alternative,
and the exercise of any such right, power or remedy by any party hereto shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by such party.




          12. Entire Agreement. This Agreement supersedes all prior agreements, written or
oral, among the parties hereto with respect to the subject matter hereof and contains the entire
agreement among the parties with respect to the subject matter hereof.




          13. Notices. All notices hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by telecopy, electronic
mail or like transmission or on the next business day when sent by Federal Express,



4









 






Express Mail or other reputable overnight courier service to the parties at the following
addresses (or at such other address for a party as shall be specified by like notice):




If to Parent:



Thoratec Corporation

6035 Stoneridge Drive

Pleasanton, CA 94588

Fax: (925) 738-0110

Attn: Gary Burbach

Attn: Legal Department

Email: gary.burbach@thortec.com

          david.lehman@thortec.com



With a copy (which shall not constitute notice to Parent) to:



Latham & Watkins LLP

650 Town Center Drive, 20th Floor

Costa Mesa, CA 92626

Fax: (714) 755-8290

Attn: Charles K. Ruck

          Tad J. Freese




     If to Stockholder, to the address set forth for Stockholder on Schedule A hereto.



          14. Governing Law; Jurisdiction; Jury Trial Waiver.




          (a) THIS AGREEMENT, AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED UPON, OR RELATED
TO THIS AGREEMENT OR THE NEGOTIATION, EXECUTION OR PERFORMANCE HEREOF, SHALL BE DEEMED TO BE MADE
IN AND IN ALL RESPECTS SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CHOICE OR CONFLICT OF LAW PRINCIPLES
THAT WOULD RESULT IN THE APPLICATION OF ANY LAWS OTHER THAN THE LAWS OF THE STATE OF DELAWARE. Any
legal action, suit or proceeding arising out of, based upon or relating to this Agreement or the
transactions contemplated hereby shall be brought solely in the Chancery Court of the State of
Delaware and any state appellate court therefrom within the State of Delaware (or, if the Chancery
Court of the State of Delaware declines to accept jurisdiction over a particular matter, any state
or federal court within the State of Delaware and any direct appellate court therefrom). Each
party hereby irrevocably submits to the exclusive jurisdiction of such courts in respect of any
legal action, suit or proceeding arising out of, based upon or relating to this Agreement and the
rights and obligations arising hereunder and agrees that it will not bring any action arising out
of, based upon or related to this Agreement in any other court. Each party hereby irrevocably
waives, and agrees not to assert as a defense, counterclaim or otherwise, in any legal action, suit
or proceeding arising out of, based upon or relating to this Agreement, (i) any claim that it is
not personally subject to the jurisdiction of the above named courts for any reason other than the



5









 






failure to serve process in accordance with Section 13, (ii) any claim that it or its
property is exempt or immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise), and (iii) to the
fullest extent permitted by Applicable Law, any claim that (A) the suit, action or proceeding in
such court is brought in an inconvenient forum, (B) the venue of such suit, action or proceeding is
improper, or (C) this Agreement, or the subject mater hereof, may not be enforced in or by such
courts. Each party agrees that notice or the service of process in any action, suit or proceeding
arising out of, based upon or relating to this Agreement or the rights and obligations arising
hereunder shall be properly served or delivered if delivered in the manner contemplated by
Section 13.




          (b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii)
EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES
THIS WAIVER VOLUNTARILY AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN SECTION 14(a) AND THIS SECTION
14(b).




          15. Severability. If any provision of this Agreement or the application of such
provision to any person or circumstances shall be held invalid or unenforceable by a court of
competent jurisdiction, such provision or application shall be unenforceable only to the extent of
such invalidity or unenforceability, and the remainder of the provision held invalid or
unenforceable and the application of such provision to persons or circumstances, other than the
party as to which it is held invalid, and the remainder of this Agreement shall not be affected.




          16. Counterparts. This Agreement may be executed in one or more counterparts
(including by facsimile), each of which shall be deemed to be an original but all of which together
shall constitute one and the same instrument.




          17. Termination. This Agreement shall terminate automatically on the Voting Covenant
Expiration Date.




          18. Further Actions. Each party hereto shall execute and deliver such additional
documents, and use its commercially reasonable efforts to take or cause to be taken such additional
lawful actions, as may be necessary or desirable to effect the transactions contemplated by this
Agreement.




6









 








          19. “Beneficial Ownership”. For purposes of this Agreement, “beneficial
ownership” (and related terms such as “beneficially own” or “beneficial owner”) has the meaning
set forth in Rule 13d-3 under the Exchange Act.




          20. Waivers and Amendments. This Agreement may be amended, modified, altered or
supplemented only by a written instrument executed by all of the parties to this Agreement. Any
failure of the parties to this Agreement to comply with any obligation, covenant, agreement or
condition in this Agreement may be waived by the party entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver. No delay on the part of any party to
this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party to this Agreement of any right, power or
privilege hereunder operate as a waiver of any other right, power or privilege hereunder, nor shall
any single or partial exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege hereunder.




          21. Merger Agreement Provisions. Capitalized terms used but not defined herein have
the respective meanings ascribed to them in the Merger Agreement. The provisions of Section 1.02
of the Merger Agreement are incorporated herein and are deemed applicable to the interpretation of
this Agreement. Stockholder acknowledges receipt of a copy of the Merger Agreement prior to the
execution of this Agreement.




          22. Effectiveness. The obligations of the parties set forth in this Agreement shall
not be effective or binding upon either party hereto until such time as the Merger Agreement is
executed and delivered by the Company, Parent, Merger Subsidiary and Merger Subsidiary Two.




          23. Certain Disclosures. Stockholder hereby authorizes Parent and the Company to
publish and disclose Stockholder’s identity and ownership of Stockholder Shares and New Shares and
the nature of Stockholder’s commitments, arrangements and understandings pursuant to this Agreement
and any other information that Parent reasonably determines to be necessary or desirable in any
press release or any other disclosure document in connection with the Mergers or any other
transactions contemplated by the Merger Agreement (including in any proxy statement or prospectus
relating to the Merger Agreement and the Mergers and in the registration statement relating to the
shares of common stock of Parent to be received by holders of Shares in the Merger and documents
and schedules filed with the Securities and Exchange Commission or the Australian Securities and
Investments Commission relating thereto or in connection therewith. 




          24. Assignment. No party to this Agreement may assign any of its rights or
obligations under this Agreement without the prior written consent of the other party hereto,
except that Parent may assign its rights and obligations hereunder to any of its direct or indirect
wholly-owned subsidiaries (including Merger Subsidiary and Merger Subsidiary Two). Any assignment
contrary to the provisions of this Section 24 shall be null and void.




          25. Attachment to Shares. Without limiting any other rights Parent may have
hereunder, pursuant to Section 8 or otherwise, Stockholder agrees that this Agreement and
the




7









 







obligations hereunder shall attach to the Stockholder Shares and any New Shares beneficially
owned by Stockholder and shall be binding upon any person to which legal or beneficial ownership of
such Stockholder Shares or New Shares shall pass, whether by operation of law or otherwise,
including, without limitation, Stockholder’s heirs, guardians, administrators, successors or
assigns.




          26. Ownership of Shares. Nothing contained in this Agreement shall be deemed, upon
execution, to vest in Parent any direct or indirect ownership or incidence of ownership of or with
respect to any Stockholder Shares or any New Shares. All rights, ownership and economic benefits
of and relating to the Stockholder Shares and any New Shares shall remain vested in and belong to
Stockholder, and Parent shall have no authority to manage, direct, superintend, restrict, regulate,
govern or administer any of the policies or operations of the Company or exercise any power or
authority to direct Stockholder in the voting of any of the Stockholder Shares or any New Shares,
except as otherwise provided herein.




          27. Expenses. All costs and expenses incurred in connection with this Agreement and
the transactions contemplated by this Agreement will be paid by the party incurring such expense.




          28. Headings. The section headings set forth in this Agreement are for convenience of
reference only and shall not affect the construction or interpretation of this Agreement in any
manner.




[Remainder of Page Intentionally Left Blank]




8









 





     IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the
date first written above.



	 	 	 	 	 
	 	PARENT:





THORATEC CORPORATION, a California
 corporation

 	 
	 	By:  	 	 
	 	 	Name:  	Gerhard F. Burbach 	 
	 	 	Title:  	President and Chief Executive

Officer 	 
	 





 









 





	 	 	 	 	 
	 

	 	STOCKHOLDER:	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 

	 	 









 









 








Schedule A




	 	 	 	 	 	 	 
	Name and Contact	 	Number of shares of	 	Number of CHESS	 	Total Number of
	Information for	 	Common Stock	 	Depositary Interests	 	Shares Beneficially
	Stockholder	 	Beneficially Owned	 	Beneficially Owned	 	Owned
	[Name of Stockholder]
	 	 	 	 	 	 
	[address]
	 	 	 	 	 	 
	[address]
	 	 	 	 	 	 
	Attention: [name]
	 	 	 	 	 	 
	Facsimile No.: [number]
	 	 	 	 	 	 
	[E-mail: [address]]
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[with
a copy to:]
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[Name]
	 	 	 	 	 	 
	[address]
	 	 	 	 	 	 
	[address]
	 	 	 	 	 	 
	Attention: [name]
	 	 	 	 	 	 
	Facsimile No.: [number]
	 	 	 	 	 	 
	[E-mail: [address]]