EX-10.3






Exhibit 10.3




INVESTOR’S RIGHTS AGREEMENT




between




THORATEC CORPORATION




and




HEARTWARE INTERNATIONAL, INC.




Dated as of February 12, 2009




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	1 Definitions

	 	 	1	 
	 
	2 Corporate Governance

	 	 	3	 
	 
	3 Legends; Securities Law Compliance

	 	 	4	 
	 
	4 Registration Rights

	 	 	4	 
	 
	5 Indemnification

	 	 	15	 
	 
	6 Miscellaneous

	 	 	19	 
	 






i









 






INVESTOR’S RIGHTS AGREEMENT



INVESTOR’S RIGHTS AGREEMENT, dated as of February 12, 2009 (this “Agreement”), by and among
HEARTWARE INTERNATIONAL, INC., a Delaware corporation (the “Company”), and THORATEC CORPORATION, a
California corporation (the “Investor”).




WITNESSETH:



WHEREAS, reference is made to that certain Loan Agreement, dated as of February 12, 2009 among the
Company, as borrower, all of the subsidiaries of Company, as guarantors, and the Investor, as
lender (as amended, amended and restated, extended or otherwise modified from time to time, the
“Loan Agreement”);



WHEREAS, the Convertible Loans are convertible into shares of Common Stock as provided in the Loan
Agreement; and



WHEREAS, the parties believe that it is in the best interests of the Company and its stockholders
to set forth their agreements on certain matters regarding the Investor’s ownership and rights with
respect to Common Stock of the Company beneficially owned by the Investor from and after the time
of any conversion of any Convertible Loans.



NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth in this
Agreement, and intending to be legally bound, the parties agree as follows:





	1	 	Definitions






	 	1.1	 	Definitions of Certain Terms






Capitalized terms used but not otherwise defined herein shall have the meanings ascribed
thereto in the Loan Agreement.




For purposes of this Agreement, the following terms have the indicated meanings:




“Agreement” is defined in the preamble to this Agreement.




“ASIC” means the Australian Securities and Investments Commission.




“Board” means the board of directors of the Company.




“Bylaws” means the Bylaws of the Company, as amended from time-to-time (or any similar
governing document of any successor).




“Certificate of Incorporation” means the Certificate of Incorporation of the Company, as
amended from time-to-time (or any similar governing document of any successor).




“Common Stock” means the common stock, par value $0.001 per share, of the Company.




“Company” is defined in the preamble to this Agreement.



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“Company Indemnified Parties” is defined in Section 5.1.1.




“Convertible Loans” means, collectively, the Convertible Portion of the Loans and any Escrow
Funds delivered for conversion in accordance with Section 2.10 or Section 2.11, as
applicable, of the Loan Agreement.




“Corporations Act” means the Australian Corporations Act 2001 (Cth), as amended and the
Corporations Regulations made under it.




“Definitive Agreement” means the Agreement and Plan of Merger, dated as of February 12, 2009
by and among the Investor, Thomas Merger Sub I, Inc., Thomas Merger Sub II, Inc. and the
Company.




“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and
the rules and regulations promulgated thereunder.




“Indemnified Party” is defined in Section 5.1.3.




“Indemnifying Party” is defined in Section 5.1.3.




“Investor” is defined in the preamble to this Agreement.




“Investor’s Counsel” is defined in Section 4.3.5.




“Investor Indemnified Parties” is defined in Section 5.1.2.




“Loan Agreement” is defined in the preamble to this Agreement.




“Piggyback Registration Statement” is defined in Section 4.2.1.




“register”, “registered” and “registration” refer to a registration effected by preparing
and filing a registration statement in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such registration statement.




“Registrable Securities” means (i) any and all Common Stock issued or issuable from time to
time upon conversion of the Convertible Loans and (ii) any Common Stock issued or issuable
in respect of the securities described in clause (i) above, or this clause (ii), upon any
stock split, stock dividend, recapitalization, reclassification, merger, consolidation or
similar event; provided that, such Common Stock shall cease to be Registrable Securities
when a registration statement covering such Common Stock has been declared effective under
the Securities Act by the SEC and such Common Stock has been disposed of pursuant to such
effective registration statement.




“Registration Expenses” is defined in Section 4.4.1.




“Registration Statement” means a registration statement including the prospectus and other
documents filed with the SEC to effect a registration under the Securities Act.




“Resale Effectiveness Period” is defined in Section 4.1.1.



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“Resale Shelf Registration Statement” is defined in Section 4.1.1.




“SEC” means the United States Securities and Exchange Commission or any other federal agency
at the time administering the Securities Act.



     “Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules
and regulations promulgated thereunder.




“Subsequent Shelf Registration” is defined in Section 4.1.2.




“Termination Date” means the date, if any, upon which the Definitive Agreement is terminated
in accordance with its terms.




	 	1.2	 	Headings; Table of Contents






Headings and table of contents should be ignored in construing this Agreement.




	 	1.3	 	Interpretation






The definitions in Section 1.1 shall apply equally to both the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include”, “includes” and
“including”, and words of similar import, shall not be limiting and shall be deemed to be
followed by the phrase “without limitation”. The word “will” shall be construed to have the
same meaning and effect as the word “shall.” The word “property” shall be construed to
refer to any and all rights and interests in tangible and intangible assets and properties
of any kind whatsoever, whether real, personal or mixed, including cash, securities, Equity
Interests, accounts and contract rights. The words “herein,” “hereof” and “hereunder,” and
words of similar import, shall be construed to refer to this Agreement in its entirety and
not to any particular provision of this Agreement unless the context shall otherwise
require. All references herein to Sections shall be deemed references to Sections of this
Agreement unless the context shall otherwise require. Except as otherwise expressly
provided herein, any definition of, or reference to, any agreement, instrument or document
in this Agreement shall mean such agreement, instrument or document as amended, restated,
supplemented or otherwise modified from time to time (subject to any restrictions on such
amendments, restatements, supplements or modifications set forth herein).




	2  Corporate Governance






	 	2.1	 	Neither the Certificate of Incorporation nor the Bylaws shall be amended in a
manner inconsistent with the terms of this Agreement without the prior written consent
of the Investor.






	 	2.2	 	The Company shall not enter into any contract, agreement or arrangement or take
any action which would limit or materially delay the Company’s performance of its
obligations hereunder.




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	3	 	Legends; Securities Law Compliance






	 	3.1	 	Each certificate representing Registrable Securities that is restricted stock
as defined in Rule 144 under the Securities Act shall bear the following legend:
	 
	 	 	 	“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF UNLESS SUCH DISPOSITION IS
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR AN EXEMPTION THEREFROM.”






	 	3.2	 	When (i) any Registrable Securities have been registered under the Securities
Act and such Registrable Securities have been sold pursuant to such registration or
(ii) any Registrable Securities have been sold pursuant to Rule 144 under the
Securities Act or are eligible to be sold pursuant to such rule without volume
limitations or other restrictions, the holder of such Registrable Securities shall be
entitled to exchange the certificate representing such Registrable Securities for a
certificate not bearing the legend required by Section 3.1.






	4	 	Registration Rights






	 	4.1	 	Shelf Registration






	 	4.1.1	 	If the Company shall receive at any time after the Termination
Date a written request from the Investor to file a registration statement on
Form S-3 or an equivalent form or forms covering the registration of the
Registrable Securities, the Company will use its commercially reasonable
efforts to file, within thirty (30) days after the receipt of such request, a
registration statement on Form S-3 or any equivalent form or forms (the “Resale
Shelf Registration Statement”) and shall use its commercially reasonable
efforts to cause such Resale Shelf Registration Statement to be declared
effective by the SEC as soon as reasonably practicable after the filing
thereof, and such Resale Shelf Registration Statement (i) will be a “shelf”
registration statement providing for the registration, and the sale on a
continuous or delayed basis, of all of the Registrable Securities pursuant to
Rule 415 under the Securities Act and (ii) will not provide for the
registration, and the sale on a continuous or delayed basis, of any Common
Stock other than the Registrable Securities. Upon filing a Resale Shelf
Registration Statement, the Company will, if applicable, use its commercially
reasonable efforts to keep such Resale Shelf Registration Statement effective
with the SEC for nine months following the date of the initial effectiveness of
the Resale Shelf Registration Statement; provided that such nine month period
shall be extended by any period or periods of time during which the Resale
Registration Statement (taken together with any Subsequent Shelf Registration)
is unavailable for sales of Registrable




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	 	 	 	Securities, whether as provided in Section 4.1.2, Section
4.5 or otherwise (such nine month period, as extended, the “Resale
Effectiveness Period”).






	 	4.1.2	 	If any Resale Shelf Registration Statement or subsequent
Registration Statement (a “Subsequent Shelf Registration”) ceases to be
effective under the Securities Act for any reason at any time within the Resale
Effectiveness Period, including the expiration thereof, the Company shall use
its commercially reasonable efforts to cause such Resale Shelf Registration
Statement or Subsequent Shelf Registration, respectively, to again become
effective under the Securities Act (including obtaining the prompt withdrawal
of any order suspending the effectiveness of such Resale Shelf Registration
Statement), and in any event shall within thirty (30) days of such cessation of
effectiveness, amend such Resale Shelf Registration Statement or Subsequent
Shelf Registration, respectively, in a manner reasonably expected to obtain the
withdrawal of any order suspending the effectiveness of such Resale Shelf
Registration Statement or Subsequent Shelf Registration, respectively, or file
an additional registration statement providing for the registration, and the
sale on a continuous or delayed basis, of all of the Registrable Securities
pursuant to Rule 415 under the Securities Act; provided that such Subsequent
Shelf Registration will not provide for the registration, and the sale on a
continuous or delayed basis, of any Common Stock other than the Registrable
Securities. If a Subsequent Shelf Registration is filed, the Company shall use
its commercially reasonable efforts to (x) cause such Subsequent Shelf
Registration to become effective under the Securities Act as soon as reasonably
practicable after such filing and (y) keep such Subsequent Shelf Registration
(or another Subsequent Shelf Registration) continuously effective with the SEC
at all times during the Resale Effectiveness Period. Any such Subsequent Shelf
Registration shall be a registration statement on Form S-3 to the extent that
the Company is eligible to use such form. For the avoidance of doubt, the
Company shall not be required to maintain a Resale Shelf Registration Statement
or Subsequent Shelf Registration after the end of the Resale Effectiveness
Period.
	 
	 	4.1.3	 	If for any reason the Company is unable to qualify as a
registrant to register the Registrable Securities on Form S-3 or any equivalent
form or forms or any similar registration in accordance with Section
4.1.1 or Section 4.1.2, as applicable, the Company shall use
commercially reasonable efforts to file a registration statement on Form S-1 or
any equivalent form or forms within thirty (30) days of such failure to qualify
in order to provide for the registration of such Registrable Securities for
resale by the Investor in accordance with any reasonable method of distribution
elected by the Investor.




5









 












	 	4.1.4	 	If the Investor intends that any Registrable Securities
covered by any registration pursuant to Section 4.1 shall be
distributed by means of an underwritten offering, the Investor will so advise
the Company. In such event, the managing underwriter to administer the
offering will be chosen by the Investor, subject to the prior written consent
of the Company, such consent not to be unreasonably withheld, conditioned or
delayed. Unless otherwise mutually agreed by the Company and the Investor, the
Company and the Investor shall enter into an underwriting agreement in such
reasonable and customary form as shall have been negotiated and agreed to by
the Company with the underwriter or underwriters selected for such
underwriting. If the Investor disapproves of the terms of the underwriting,
the Investor may promptly elect to withdraw therefrom by written notice to the
Company and the managing underwriter.
	 
	 	4.1.5	 	If the managing underwriter in any underwritten offering
pursuant to this Section 4.1, advises the Company that in its
reasonable opinion the number of securities requested by the Investor to be
included in such distribution exceeds the number which can be sold without
adversely affecting the marketability of such offering (including an adverse
effect on the per share offering price), the Investor will include in such
distribution only such number of securities that in the reasonable opinion of
such underwriter can be sold without adversely affecting the marketability of
the offering (including an adverse effect on the per share offering price).
	 
	 	4.1.6	 	Notwithstanding the foregoing, if the Company shall furnish to
the Investor a certificate signed by the Chief Executive Officer of the Company
stating that in the good faith judgment of the Board it would be detrimental to
the Company and its stockholders for such Resale Shelf Registration Statement
to be filed, the Company shall have the right to defer such filing for a period
of not more than sixty (60) days after receipt of the request by the Investor;
provided, however, that the Company shall not register any securities for the
account of itself or any other stockholder during such sixty (60) day period.
	 
	 	4.1.7	 	In addition, the Company shall not be obligated to effect or
to take any action to effect, any registration pursuant to this Section
4.1 after the Company has effected one (1) registration pursuant to this
Section 4.1; provided, however, that such registration has been
declared or ordered effective and has been available for sales of Registrable
Securities for the entire Resale Effectiveness Period.






	 	4.2	 	Piggyback Registrations






	 	4.2.1	 	Whenever the Company proposes to register any of its Common
Stock in connection with an underwritten public offering of such securities
solely for cash, other than a registration on Form S-4 or Form S-8 (or any
successor form), and the registration form to be filed may be used for the




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	 	 	 	registration or qualification for distribution of Registrable Securities by
the Company, the Company will give prompt written notice to the Investor of
its intention to effect such a registration (but in no event less than ten
(10) Business Days prior to the anticipated filing date) and, subject to
Section 4.2.3, will include in such registration all Registrable
Securities with respect to which the Company has received written requests
for inclusion therein from the Investor within ten (10) Business Days after
the date of the Company’s notice (a “Piggyback Registration Statement”).
The Investor may withdraw its Registrable Securities from such Piggyback
Registration Statement by giving prompt written notice to the Company and
the managing underwriter, if any, on or before the fifth (5th) Business Day
prior to the planned effective date of such Piggyback Registration
Statement. The Company may terminate or withdraw any registration under
this Section 4.2.1 prior to the effectiveness of such registration,
whether or not the Investor has elected to include Registrable Securities in
such registration.






	 	4.2.2	 	The right of the Investor to registration pursuant to this
Section 4.2 will be conditioned upon the Investor’s participation in
the underwriting and the inclusion of the Investor’s Registrable Securities in
the underwriting, and the Company and the Investor will (together with any
other Persons distributing their securities through such underwriting) enter
into an underwriting agreement (including all reasonable and customary
questionnaires, powers of attorney, indemnities, lock-up letters and other
documents required under the terms of such underwriting agreement) in such
reasonable and customary form as shall have been negotiated and agreed to by
the Company with the underwriter or underwriters selected for such underwriting
by the Company. If the Investor disapproves of the terms of the underwriting,
the Investor may elect to withdraw therefrom by written notice to the Company
and the managing underwriter.
	 
	 	4.2.3	 	If the managing underwriter in any underwritten offering
pursuant to a Piggyback Registration Statement advises the Company that in its
sole and reasonable opinion the number of securities requested to be included
in such registration exceeds the number which can be sold without adversely
affecting the marketability of such offering (including an adverse effect on
the per share offering price), the Company will include in such registration
only such number of securities that in the reasonable opinion of such
underwriter can be sold without adversely affecting the marketability of the
offering (including an adverse effect on the per share offering price), which
securities will be so included in the following order of priority: (i) first,
the securities the Company proposes to sell and (ii) second, the Registrable
Securities of the Investor and any other securities of the Company that have
been requested by other holders of Common Stock having registration rights to
be so included, on a pro rata basis, up to the maximum number of securities the
managing underwriter advises the





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	 	 	 	Company may be sold without adversely affecting the marketability of such
offering.






	 	4.3	 	Registration Procedures






Whenever any Registrable Securities are to be registered pursuant to Section 4.1,
the Company will use its commercially reasonable efforts to effect the registration and sale
of such Registrable Securities as soon as reasonably practicable in accordance with the
intended method of disposition thereof and pursuant thereto. The Company shall, without
limitation of its other obligations set forth in this Agreement:




	 	4.3.1	 	Prepare and file, within thirty (30) days after receipt by the
Company of a request by the Investor to file with the SEC a Registration
Statement with respect to such Registrable Securities required to be filed
pursuant to Section 4.1, together with any notices or regulatory
filings required to be made in connection therewith (including filing a copy of
the Registration Statement and any amendments or supplements thereto, with
ASX), and thereafter use its commercially reasonable efforts to cause such
Registration Statement to become effective as soon as reasonably practicable
after the filing thereof (with a copy of the Registration Statement once
effective to be lodged with ASIC if required); provided that, before filing a
Registration Statement or any amendments or supplements thereto, the Company
will, at the Company’s expense, furnish or otherwise make available to the
Investor and the Investor’s Counsel copies of all such documents proposed to be
filed and such other documents reasonably requested by the Investor and the
Investor’s Counsel, which documents will be subject to the review and/or
reasonable comment, as applicable, of the Investor and the Investor’s Counsel,
including any comment letter from the SEC with respect to such filing or the
documents incorporated by reference therein and any response to such comment
letter, and provide the Investor and the Investor’s Counsel reasonable
opportunity to participate in the preparation of such Registration Statement
and the opportunity to conduct a reasonable investigation within the meaning of
the Securities Act, including reasonable access to the Company’s financial
books and records, officers, accountants and other advisors, as the Investor or
the Investor’s Counsel may reasonably request; provided, that, it shall be a
condition to such review of such information that the inspecting person enter
into a customary confidentiality agreement in form and substance reasonably
satisfactory to the Company;
	 
	 	4.3.2	 	Prepare and file with the SEC (with a copy to be lodged with
ASIC if required) such amendments and supplements to such Registration
Statement as may be necessary to keep such Registration Statement effective for
a period of either (i) not less than, if such Registration Statement is a
Piggyback Registration Statement relating to an underwritten offering, such
period as, based upon the opinion of counsel




8









 






	 	 	 	for the underwriters, a prospectus is required by law to be delivered in
connection with sales of Registrable Securities by an underwriter or dealer
or such shorter period as will terminate when all of the securities covered
by such Registration Statement have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth
in such Registration Statement (but in any event not before the expiration
of any longer period required under the Securities Act) or (ii) continuously
in the case of shelf registration statements, including the Resale Shelf
Registration Statement and any Subsequent Shelf Registration, and any shelf
registration statement, including the Resale Shelf Registration Statement
and any Subsequent Shelf Registration, shall be re-filed upon its expiration
(or in each case, such shorter period ending on the date that the securities
covered by such shelf registration statement cease to constitute Registrable
Securities), and cause the related prospectus to be supplemented by any
prospectus supplement as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of the securities covered
by such Registration Statement, and as so supplemented to be filed pursuant
to Rule 424 (or any similar provisions then in force) under the Securities
Act; provided that the Company shall not be required to maintain a Resale
Shelf Registration Statement or Subsequent Shelf Registration after the end
of the Resale Effectiveness Period;






	 	4.3.3	 	Furnish to the Investor, and each managing underwriter, if
any, such number of copies, without charge, of such Registration Statement,
each amendment and supplement thereto, including each preliminary prospectus,
final prospectus, any other prospectus (including any prospectus filed under
Rule 424, Rule 430A or Rule 430B under the Securities Act and any “issuer free
writing prospectus” as such term is defined under Rule 433 under the Securities
Act), all exhibits and other documents filed therewith and such other documents
as the Investor or such managing underwriter may reasonably request including
in order to facilitate the disposition of the Registrable Securities owned by
the Investor, and upon request a copy of any and all transmittal letters or
other correspondence to or received from, the SEC or any other Governmental
Authority relating to such offer;
	 
	 	4.3.4	 	Use commercially reasonable efforts to register or qualify (or
exempt from registration or qualification) such Registrable Securities, and
keep such registration or qualification (or exemption therefrom) effective,
under such other securities or blue sky laws of such United States
jurisdictions as the Investor reasonably requests and do any and all other acts
and things that may be reasonably necessary or reasonably advisable to enable
the Investor to consummate the disposition in such jurisdictions of the
Registrable Securities owned by the Investor (provided that the Company will
not be required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this




9









 






	 	 	 	subsection or (ii) consent to general service of process in suits or to
taxation in any such jurisdiction);






	 	4.3.5	 	Notify the Investor, the outside counsel to the Investor (the
“Investor’s Counsel”) and the managing underwriter(s), if any, at any time when
a prospectus relating thereto is required to be delivered under the Securities
Act, upon discovery that, or upon the discovery of the happening of any event
that makes, any statement made in the Registration Statement or related
prospectus or any document incorporated or deemed to be incorporated therein by
reference includes any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or incomplete in the light of the circumstances then
existing or that otherwise requires the making of any changes in such
Registration Statement, prospectus or documents;
	 
	 	4.3.6	 	Notify the Investor, the Investor’s Counsel and the managing
underwriter(s), if any, (i) when such Registration Statement or the prospectus
or any prospectus supplement or post-effective amendment has been filed and,
with respect to such Registration Statement or any post-effective amendment,
when the same has become effective, (ii) of any request by the SEC for
amendments or supplements to such Registration Statement or to amend or to
supplement such prospectus or for additional information, (iii) of the issuance
by the SEC of any stop order suspending the effectiveness of such Registration
Statement or the initiation of any proceedings for such purpose, to the extent
that it is aware of such proceedings and (iv) of the receipt by the Company of
any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction, or the initiation or threatening of any proceeding for such
purpose;
	 
	 	4.3.7	 	Upon the occurrence of an event contemplated in Section
4.3.5 or in Section 4.3.6(ii), 4.3.6(iii) or
4.3.6(iv), as soon as reasonably practicable, (i) prepare and furnish
to the Investor a reasonable number of copies of a supplement or amendment to
the Registration Statement or supplement to the related prospectus or any
document incorporated or deemed to be incorporated therein by reference, or
file any other required document so that, in the case of a Registration
Statement, it will not contain any untrue statement of a material fact or omit
to state any fact necessary to make the statements therein not misleading and
that, in the case of any prospectus, it will not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statement therein, in light of the circumstances in which they were
made, not misleading or (ii) advise the Investor in writing that the
Registration Statement may be used for the sale of Registrable Securities;




10









 












	 	4.3.8	 	Use commercially reasonable efforts to cause all such
Registrable Securities to be listed on each securities exchange on which Common
Stock issued by the Company is then listed or, if no similar securities issued
by the Company are then listed on any securities exchange, use its commercially
reasonable efforts to cause all such Registrable Securities to be listed on the
NASDAQ Global Market;
	 
	 	4.3.9	 	Provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such Registration
Statement;
	 
	 	4.3.10	 	Enter into such customary agreements (including underwriting agreements and
lock-up agreements in customary form (excluding any lock-up of Registrable
Securities), including provisions with respect to indemnification and
contribution in customary form) and take all such other customary actions as
the Investor or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;
	 
	 	4.3.11	 	In connection with any underwritten offering, make such representations and
warranties to the Investor and the managing underwriter(s), if any, with
respect to the business of the Company and the Company’s Subsidiaries, and the
Registration Statement, prospectus, and documents incorporated or deemed to be
incorporated by reference therein, in each case, in form, substance and scope
as are customarily made by the issuer in underwritten offerings, and, if true,
make customary confirmations of the same if and when reasonably requested;
	 
	 	4.3.12	 	If requested by the Investor, or the managing underwriter(s), if any,
promptly include in a prospectus supplement or amendment such information as
the Investor or managing underwriter(s), if any, may reasonably request in
order to permit the intended method of distribution of such securities and make
all required filings of such prospectus supplement or such amendment as soon as
reasonably practicable after the Company has received such request;
	 
	 	4.3.13	 	In the case of certificated Registrable Securities, cooperate with the
Investor and the managing underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates (not bearing any legends) representing
Registrable Securities to be sold after receiving written representations from
the Investor that the Registrable Securities represented by the certificates so
delivered by the Investor will be transferred in accordance with the
Registration Statement and applicable law, and enable such Registrable
Securities to be in such denominations and registered in such names as the
Investor or managing underwriters, if any, may request at least two (2)
Business Days prior to any sale of such Registrable Securities;




11









 












	 	4.3.14	 	Make available for inspection by the Investor and the Investor’s Counsel, any
underwriter participating in any disposition pursuant to such Registration
Statement and any attorney, accountant or other agent retained by the Investor
or underwriter, to the extent reasonably necessary and solely for conducting
customary due diligence, all financial and other records, pertinent corporate
documents and documents relating to the business of the Company, provided that,
it shall be a condition to such inspection and receipt of such information that
the inspecting person enter into a customary confidentiality agreement in form
and substance reasonably satisfactory to the Company;
	 
	 	4.3.15	 	Otherwise use its commercially reasonable efforts to comply with (i) all
applicable rules and regulations of the SEC, (ii) all applicable Australian
securities laws (including any ASIC class orders, policies and requirements),
including the lodgment of any effective Registration Statement with ASIC, with
an Australian offer document if required, and (iii) all applicable rules and
regulations of any applicable securities exchange, including while the Company
is admitted to the official list of ASX, the listing rules of the ASX,
including (A) notifying ASX of the issue of the Registrable Securities in the
form of an Appendix 3B and (B) if any of the Registrable Securites were issued
in reliance on an exception in section 708 of the Corporations Act, providing
the ASX with a notice that complies with section 708A(6) of the Corporations
Act in respect of the Registrable Securities;
	 
	 	4.3.16	 	Timely provide to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(which need not be audited);
	 
	 	4.3.17	 	In the event of the issuance of any stop order suspending the effectiveness
of a Registration Statement, or of any order suspending or preventing the use
of any related prospectus or ceasing trading of any securities included in such
Registration Statement for sale in any jurisdiction, use every commercially
reasonable effort to promptly obtain the withdrawal of such order;
	 
	 	4.3.18	 	In connection with any underwritten offering, obtain one or more comfort
letters, addressed to the underwriters, if any, dated the effective date of
such Registration Statement and the date of the closing under the underwriting
agreement for such offering, signed by the Company’s independent registered
public accountants (and if necessary, any other independent registered public
accountants of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
Registration Statement) in customary form and covering such matters of the type
customarily covered by comfort letters as such underwriters shall reasonably
request;




12









 












	 	4.3.19	 	In connection with any underwritten offering, provide legal opinions of the
Company’s counsel, addressed to the underwriters, if any, dated the date of the
closing under the underwriting agreement, with respect to the Registration
Statement, each amendment and supplement thereto (including the preliminary
prospectus) and such other documents relating thereto as the underwriter shall
reasonably request in customary form and covering such matters of the type
customarily covered by legal opinions of such nature; and
	 
	 	4.3.20	 	Obtain any required regulatory approval necessary for the Investor to sell
its Registrable Securities in an offering, other than regulatory approvals
required solely as a result of the nature of the Investor.






As a condition to registering Registrable Securities, the Company may require the Investor
to furnish the Company with such information (including information regarding the Investor,
the Registrable Securities held by the Investor and the intended method of distribution)
reasonably necessary to comply with the disclosure requirements relating to the registration
and the distribution of such securities as the Company may from time to time reasonably
request in writing.




	 	4.4	 	Registration Expenses






	 	4.4.1	 	Except as otherwise provided in this Agreement, all fees,
costs and expenses incidental to the Company’s performance of or compliance
with this Agreement, including all registration and filing fees, fees and
expenses of compliance with securities or blue sky laws, word processing,
duplicating and printing expenses, messenger, telephone and delivery expenses,
expenses incurred in connection with any road show, and fees, costs and
expenses of counsel for the Company and all independent certified public
accountants and other persons retained by the Company (all such expenses,
“Registration Expenses”), will be borne by the Company. The Company will, in
any event, pay its internal expenses (including all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit or quarterly review, the expenses of any liability
insurance and the expenses and fees for listing the securities to be registered
on each securities exchange on which they are required to be listed hereunder.
The Investor shall pay all underwriting discounts, selling commissions and
transfer taxes applicable to the sale of Registrable Securities by the Investor
hereunder and any other Registration Expenses required by law to be paid by the
Investor, provided that, in the event of a registration of Registrable
Securities pursuant to a Piggyback Registration Statement, such underwriting
discounts, selling commissions and transfer taxes shall be payable by the
Company and the holders of securities listed in such Piggyback Registration
Statement pro rata on the basis of the amount of proceeds received from the
sale of such securities so registered and sold in such sale.




13









 












	 	 4.4.2	 	In connection with any registration, the Company will
reimburse the Investor for its reasonable costs, fees and expenses (other than
underwriters’ discounts and commissions), including the reasonable fees and
disbursements of the Investor’s Counsel.






	 	4.5	 	Discontinuance of Use of Prospectus






	 	4.5.1	 	The Investor agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section
4.3.5, Section 4.3.6(ii), Section 4.3.6(iii) and
Section 4.3.6(iv), the Investor will forthwith discontinue the
disposition of its Registrable Securities pursuant to the Registration
Statement until the Investor receives copies of a supplemented or amended
prospectus as contemplated by Section 4.3.7 or until the Company
advises the Investor in writing that the disposition of the Registrable
Securities may resume.
	 
	 	4.5.2	 	Notwithstanding any other provision of this Agreement, if the
Board of Directors of the Company has determined in good faith that (i) the
disclosure necessary for continued use of the prospectus or Registration
Statement by the Investor could be materially detrimental to the Company or
(ii) the Company is undergoing, or the Board of Directors of the Company has
determined in good faith to evaluate whether there is a need for, a restatement
of its audited financial statements and, as a result thereof, the Company’s
historical financial statements included or incorporated by reference (or to be
included or incorporated by reference) in the Registration Statement or
prospectus may not be relied upon (or the Company believes that it may so
determine), then the Company shall have the right not to file or not to cause
the effectiveness of any registration covering any Registrable Securities and
to suspend the use of the prospectus and the Registration Statement covering
any Registrable Security for such period of time as (x) its use could be
materially detrimental to the Company or (y) is reasonably necessary to
complete such restatement, in either case by delivering written notice of such
suspension to the Investor; provided, however, that during the Resale
Effectiveness Period, the Company may exercise the right to such suspension not
more than twice and for not more than an aggregate of 90 days. From and after
the date of a notice of suspension under this Section 4.4.1, the Investor
agrees not to use the prospectus or Registration Statement until the earlier of
(1) notice from the Company that such suspension has been lifted or (2) the day
following the 60th day of suspension.






	 	4.6	 	Rule 144






The Company will use its commercially reasonable efforts to timely file all reports and
other documents required to be filed by it under the Securities Act and the Exchange Act
(or, if the Company is not required to file such reports, it will, upon the request of the



14









 







Investor, make publicly available such information as necessary to permit sales pursuant to
Rule 144 or Regulation S under the Securities Act), and it will take such further action as
the Investor may reasonably request, to the extent required from time to time to enable the
Investor to sell shares of Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (i) Rule 144 or Regulation S under
the Securities Act, as such rules may be amended from time to time, or (ii) any similar rule
or regulation hereafter adopted by the SEC. Upon the reasonable request of the Investor,
the Company will deliver to the Investor a written statement as to whether it has complied
with such information requirements, and, if not, the specifics thereof.




	 	4.7	 	Additional Interest






In the event the Company fails to file the Resale Shelf Registration Statement within sixty
(60) days of receipt by the Company of a request from the Investor pursuant to Section
4.1.1 (or ninety (90) days to the extent the Company exercises its righs under
Section 4.1.6), the Company will pay to the Investor (i) if prior to the Maturity
Date, on the next applicable Interest Payment Date, an amount equivalent to 0.5% per annum
on the principal amount of the Convertible Loans that have been converted into Registrable
Securities and (ii) if from and after the Maturity Date, on the last day of each fiscal
month of the Company, 1.0% per annum on the principal amount of the Convertible Loans that
have been converted into Registrable Securities, in each case, for each day that such filing
is late.




	5 	Indemnification






	 	5.1.1	 	The Company will, with respect to any Registrable Securities
as to which registration or qualification or compliance under applicable “blue
sky” laws has been effected pursuant to this Agreement, indemnify and hold
harmless the Investor, the Investor’s officers, directors, partners and
members, and each person controlling the Investor within the meaning of Section
15 of the Securities Act, and each underwriter thereof, if any, and each person
who controls any such underwriter within the meaning of Section 15 of the
Securities Act (collectively, the “Company Indemnified Parties”), against all
expenses, claims, losses, damages and liabilities, joint or several (or actions
in respect thereof) arising out of or based on (i) any untrue statement (or
alleged untrue statement) of a material fact contained in any registration
statement, prospectus, preliminary prospectus, offering circular or other
document, or any amendment or supplement thereto incident to any such
registration, qualification or compliance or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, or (ii) any violation by the Company of
any rule or regulation promulgated under the Securities Act, Exchange Act or
other federal or state securities laws applicable to the Company in connection
with any such registration, qualification or compliance, and, in each such




15









 






	 	 	 	case, the Company will reimburse each of the Company Indemnified Parties for
any reasonable legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, as such expenses are incurred, in each case.
The indemnity agreement contained in this Section 5.1.1 shall not
apply to amounts paid in settlement of any loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld, conditioned or delayed),
nor shall the Company be liable to the Company Indemnified Parties in any
such case for any such loss, claim, damage, liability or action (i) to the
extent that it arises out of or is based upon a violation or alleged
violation of any state or federal law (including any claim arising out of or
based on any untrue statement or alleged untrue statement or omission or
alleged omission in the registration statement or prospectus) which occurs
in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by or on behalf of a
Company Indemnified Party or (ii) in the case of a sale directly by the
Investor of Registrable Securities (including a sale of such Registrable
Securities through any underwriter retained by the Investor engaging in a
distribution solely on behalf of the Investor), such untrue statement or
alleged untrue statement or omission or alleged omission was corrected in a
final or amended prospectus delivered to the Investor prior to the
confirmation of the sale of the Registrable Securities to the person
asserting any such loss, claim, damage or liability, and the Investor failed
to deliver a copy of the final or amended prospectus at or prior to the
confirmation of the sale of the Registrable Securities to the person
asserting any such loss, claim, damage or liability in any case in which
such delivery is required by the Securities Act.






	 	5.1.2	 	The Investor will, if Registrable Securities held by the
Investor are included in the securities as to which such registration or
qualification or compliance under applicable “blue sky” laws is being effected,
indemnify and hold harmless the Company, each of its directors, officers,
partners and members, each underwriter, if any, of the Company’s securities
covered by such a registration, and each person who controls the Company or
such underwriter within the meaning of Section 15 of the Securities Act
(collectively, the “Investor Indemnified Parties”), against all expenses,
claims, losses, damages and liabilities, joint or several (or actions in
respect thereof) arising out of or based on (i) any untrue statement (or
alleged untrue statement) of a material fact contained in any registration
statement, prospectus, preliminary prospectus, offering circular or other
document, or any amendment or supplement thereto incident to any such
registration, qualification or compliance or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement)




16









 












or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of the Investor and stated to be specifically for use therein, or (ii) any
violation by the Investor of any rule or regulation promulgated under the
Securities Act, Exchange Act or state securities law applicable to the
Investor in connection with such registration, qualification or compliance,
and in each such case the Investor will reimburse each of the Investor
Indemnified Parties for any reasonable legal or any other expenses
reasonably incurred in connection with investigating, preparing or defending
any such claim, loss, damage, liability or action, as such expenses are
incurred, in each case, provided, however, that in no event shall any
indemnity under this Section 5.1.2 payable by the Investor exceed
the amount by which (x) the net proceeds actually received by the Investor
from the sale of Registrable Securities included in such registration
exceeds (y) the amount of any other losses, expenses, settlements, damages,
claims and liabilities that the Investor has been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission
or violation. The indemnity agreement contained in this Section
5.1.2 shall not apply to amounts paid in settlement of any loss, claim,
damage, liability or action if such settlement is effected without the
consent of the Investor (which consent shall not be unreasonably withheld,
conditioned or delayed), nor shall the Investor be liable to any Investor
Indemnified Party for any such loss, claim, damage, liability or action
where such untrue statement or alleged untrue statement or omission or
alleged omission was corrected in a final or amended prospectus prior to the
confirmation of the sale of the Registrable Securities to the person
asserting any such loss, claim, damage or liability, and the Company or the
underwriters failed to deliver a copy of the final or amended prospectus at
or prior to the confirmation of the sale of the Registrable Securities to
the person asserting any such loss, claim, damage or liability in any case
in which such delivery is required by the Securities Act.




	 	5.1.3	 	Each party entitled to indemnification under this Section
5 (the “Indemnified Party”) shall give written notice to the party required
to provide indemnification (the “Indemnifying Party”) promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to participate or to assume
the defense of any such claim or any litigation resulting therefrom, provided,
however, that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or litigation, shall be approved by the Indemnified Party (whose
approval shall not unreasonably be withheld, conditioned or delayed), and the
Indemnified Party may participate in such defense at such party’s expense;
provided, further, however, that an Indemnified Party (together with all other
Indemnified Parties which may be represented without conflict by one




17









 






	 	 	 	counsel) shall have the right to retain one separate counsel, with the
reasonable fees and expenses to be paid by the Indemnifying Party, if
representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to conflicting interests
between such Indemnified Party and any other party represented by such
counsel in such proceeding. The failure of any Indemnified Party to give
notice as provided herein shall relieve the Indemnifying Party of its
obligations under this Section 5 only to the extent that the failure
to give such notice is materially prejudicial or harmful to an Indemnifying
Party’s ability to defend such action. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of
each Indemnified Party (which consent shall not be unreasonably withheld,
conditioned or delayed), consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release
from all liability in respect to such claim or litigation. The indemnity
agreements contained in this Section 5 shall not apply to amounts
paid in settlement of any loss, claim, damage, liability or action if such
settlement is effected without the consent of the Indemnifying Party, which
consent shall not be unreasonably withheld, conditioned or delayed. The
indemnification set forth in this Section 5 shall be in addition to
any other indemnification rights or agreements that an Indemnified Party may
have.






	 	5.1.4	 	If the indemnification provided for in this Section 5
is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party, other than pursuant to its terms, with respect to any claim,
loss, damage, liability or action referred to therein, then, subject to the
limitations contained in the last sentence of this Section 5.1.4, the
Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such claim, loss, damage, liability or action in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and the Indemnified Party on the other in connection with the actions
that resulted in such claims, loss, damage, liability or action, as well as any
other relevant equitable considerations. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact related
to information supplied by the Indemnifying Party or by the Indemnified Party
and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Investor agree that it would not be just and equitable if contribution
pursuant to this Section 5.1.4 were based solely upon the number of
entities from whom contribution was requested or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 5.1.4. In no event shall the Investor’s
contribution obligation under this Section 5.1.4 exceed (i) the




18









 






	 	 	 	amount by which the net proceeds actually received by the Investor from the
sale of Registrable Securities included in such registration exceeds (ii)
the amount of any other losses, expenses, settlements, damages, claims and
liabilities that the Investor has been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission or
violation. No person guilty of fraudulent misrepresentation (within the
meaning of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.






	 	5.1.5	 	Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in an underwriting
agreement entered into in connection with an underwritten public offering are
in conflict with the foregoing provisions, the provisions in such underwriting
agreement shall control.






	6	 	Miscellaneous






	 	6.1	 	Notices






	 	6.1.1	 	Notices and other communications provided for herein shall be
in writing and shall be delivered by hand or overnight courier service, mailed
by certified or registered mail or sent by fax, as follows:






	 	6.1.1.1	 	if to the Company to:





HeartWare International, Inc.

14000-14050 NW 57th Court

Miami Lakes, FL 33014

Attention: David McIntyre

Fax: (305) 818-4123

Email: dmcintyre@heartwareinc.com





	 	 	 	with a copy (which shall not constitute notice) to:





Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

Attention: Clare O’Brien

               Robert M. Katz

Fax: (212) 848-7179





	 	6.1.1.2	 	if to the Investor to:





Thoratec Corporation

6035 Stoneridge Drive

Pleasanton, CA 94588

Attention: Gary Burbach




19









 





Fax: (925) 264-4341

Email: gary.burbach@thortec.com





	 	 	 	with a copy (which shall not constitute notice) to:





Latham & Watkins LLP

650 Town Center Drive, 20th Floor

Costa Mesa, CA 92626




Attn: Charles K. Ruck

Tad J. Freese

Fax: (714) 755-8290





All such notices and other communications (i) sent by hand or overnight courier
service, or mailed by certified or registered mail, shall be deemed to have been
given when received or (ii) sent by fax shall be deemed to have been given when sent
with confirmation of receipt; provided that if not given during normal
business hours for the recipient, shall be deemed to have been given at the opening
of business on the next Business Day for the recipient.




	 	6.1.2	 	Any party hereto may change its address or fax number for
notices and other communications hereunder by notice to the other parties
hereto in accordance with the provisions hereof.






	 	6.2	 	Termination






This Agreement shall be effective as of the date hereof and shall terminate with respect to
the Investor with respect to all provisions (other than Section 4, Section 5
or Section 6), unless otherwise provided herein, on the date on which (i) no Loans
remain outstanding and/or available for Borrowing and no amounts remain in the Escrow
Account and (ii) there cease to be any Registrable Securities outstanding.




	 	6.3	 	Governing Law






THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.




	 	6.4	 	Submission to Jurisdiction






	 	6.4.1	 	The Company and the Investor each irrevocably and
unconditionally submits, for itself and its property, to the exclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in the Borough of Manhattan, New York, New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or




20









 






	 	 	 	proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.






	 	6.4.2	 	The Company and the Investor each irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any New York State court or Federal court of the United States of America
sitting in the Borough of Manhattan, New York, New York. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
	 
	 	6.4.3	 	Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 6.1. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.






	 	6.5	 	Waiver of Jury Trial






EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES
THAT 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 AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 6.5.




	 	6.6	 	Severability






In the event any one or more of the provisions contained in this Agreement should be held
invalid, illegal or unenforceable in any respect, the validity, legality and enforceability
of the remaining provisions contained herein and therein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or unenforceable
provisions.



21









 






	 	6.7	 	Entire Agreement






This Agreement, the other Loan Documents, the Definitive Agreement and the other documents
contemplated hereby and thereby constitute the entire contract between the parties relative
to the subject matter hereof. Any other previous agreement among the parties with respect
to the subject matter hereof is superseded by this Agreement, the other Loan Documents, the
Definitive Agreement and the other documents contemplated hereby and thereby. Nothing in
this Agreement or in the other Loan Documents, expressed or implied, is intended to confer
upon any person (other than the parties hereto and thereto, their respective successors and
assigns permitted hereunder and, to the extent expressly contemplated hereby, the Related
Parties of the Investor) any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.




	 	6.8	 	Amendment and Waiver






	 	6.8.1	 	No failure or delay of the Investor in exercising any power or
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Investor hereunder are cumulative and are not
exclusive of any rights or remedies that it would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Company
therefrom shall in any event be effective unless the same shall be permitted by
Section 6.8.2, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. No notice or
demand on the Company in any case shall entitle the Company to any other or
further notice or demand in similar or other circumstances.
	 
	 	6.8.2	 	Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Company and the Investor.






	 	6.9	 	Successors and Assigns






	 	6.9.1	 	This Agreement will be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement. Any purported
assignment or delegation in violation of this Agreement shall be null and void
ab initio.




22









 












	 	6.9.2	 	The Company shall not assign any or all of its rights or
obligations under this Agreement without the prior written consent of the
Investor.
	 
	 	6.9.3	 	All or a portion of the rights and obligations of the Investor
under this Agreement in proportion, and to the extent applicable, to the Loans,
Commitments, Escrow Funds or Registrable Securities so transferred or assigned
may be assigned to a transferee or assignee in connection with any transfer or
assignment of Loans, Commitments, Escrow Funds or Registrable Securities under
the Loan Agreement; provided, however, that (a) such transfer must otherwise be
effected in accordance with applicable securities laws, (b) prior written
notice of such assignment is given to the Company, (c) the Company is, within a
reasonable time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the Registrable Securities with
respect to which such registration rights are being assigned and (d) such
transferee or assignee agrees to be bound by, and subject to, this Agreement
with respect to the rights and obligations so assigned to the same extent as
the Investor, pursuant to a written instrument in form and substance reasonably
acceptable to the Company. In the event any transfer of rights and obligations
pursuant to this Agreement occurs, the transferee or assignee shall be treated
as the Investor for all purposes hereunder with respect to such rights and
obligations so assigned and each reference to the “Investor” herein shall be
deemed to be a reference to the Investor taken together with such assignee or
transferee, mutatis mutandis, and any rights exercisable, or determination or
appointments to be made, by the Investor hereunder shall be exercisable by the
holders of a majority of the Registrable Securities hereunder at the time such
determination is made. Each party to this Agreement shall have the absolute
right to exercise or refrain from exercising any right or rights that such
party may have by reason of this Agreement, and such party shall not incur any
liability to any other party or other holder of any securities of the Company
as a result of exercising or refraining from exercising any such right or
rights.
	 
	 	6.10	 	No Third-Party Beneficiaries






Nothing in this Agreement is intended to or shall confer any rights or benefits upon any
Person other than the parties hereto.



23









 






	 	6.11	 	Expenses






Except as provided in Section 4.4, all fees, costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby, including
accounting and legal fees shall be paid by the party incurring such expenses.




	 	6.12	 	Binding Effect






This Agreement shall become effective when it shall have been executed by each of the
parties hereto and thereto and when the Investor shall have received counterparts hereof and
thereof which, when taken together, bear the signatures of each of the other parties hereto
and thereto.




	 	6.13	 	Counterparts






This Agreement may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original but all of which when taken
together shall constitute a single contract, and shall become effective as provided in
Section 6.12. Delivery of an executed signature page to this Agreement by facsimile
or other electronic transmission shall be as effective as delivery of a manually signed
counterpart of this Agreement.



[Remainder of Page Intentionally Left Blank]




24









 








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



HEARTWARE INTERNATIONAL, INC., as the Company




	 	 	 	 	 
	By:

	 	/s/ Douglas Godshall
 

	 	 
	Name:
	 	Douglas Godshall	 	 
	Title:

	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 
	THORATEC CORPORATION, as the Investor	 	 
	 
	 	 	 	 
	By:

	 	/s/ Gerhard F. Burbach
 

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