Exhibit 10.08





Exhibit 10.08








December
___, 2010


We would like to clarify certain terms of the employment letter (the “Agreement”), between you and
HeartWare, Inc. (the “Company”), to reflect the parties’ original intent to comply with the
requirements of section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) and
one additional matter concerning indemnification, as follows:



1. Timing of Severance Pay After Execution of a Release. If under the terms of the Agreement
the execution of a general release of claims is a condition to your receiving severance or other
benefits under the Agreement, the Company will provide you with the form of release agreement
within seven days after your separation from service. To be entitled to the severance or other
benefits, you must execute and deliver to the Company the release agreement on or before the last
day of the minimum required waiver consideration period provided under the Age Discrimination in
Employment Act or other applicable law. If you timely deliver an executed release agreement to the
Company, and you do not revoke the release agreement during the minimum revocation period required
under applicable law, the severance or other benefits shall be paid or commence being paid, as
specified in the Agreement, on the date the release agreement becomes effective. If, however, the
period during which you have discretion to execute or revoke the release agreement straddles two
calendar years, the severance or other benefits shall be paid or commence being paid, as
applicable, as soon as practicable in the second of the two calendar years, regardless of within
which calendar year you actually deliver the executed release agreement to the Company, subject to
the release agreement first becoming effective. Consistent with Section 409A, you may not,
directly or indirectly, designate the calendar year of payment. Nothing in this letter agreement
shall be construed to alter the terms of the Agreement that condition your entitlement to any
severance or other benefits upon your compliance with the restrictive covenants and any other terms
and conditions specified in the Agreement.


 


 









 





2. Indemnification. Except in the case of negligence, fraud, embezzlement or misrepresentation
the Company hereby agrees to indemnify and hold harmless Executive to the fullest extent permitted
by Section 145 of the Delaware General Corporation Law and to cause any parent or subsidiary of the
Company (including, without limitation, the Parent) to indemnify and hold you harmless to the
fullest extent permitted by the provisions of the laws of the jurisdiction of its incorporation
against any liability, loss or expense (including reasonable attorney’s fees and costs incurred in
defense of such claims) incurred in connection with the your services as an officer or director of
the Company or any of its subsidiaries or affiliates, including the Parent, if in each of the
foregoing cases, (i) you acted in good faith and in a manner you
believed to be in, or not opposed to, the best interests of the Company, and, with respect to
any criminal proceeding, had no reasonable cause to believe your conduct was unlawful, and (ii)
your conduct did not constitute gross negligence or willful or wanton misconduct. Without
limitation of the foregoing, this paragraph shall be deemed to grant to the you the rights to
indemnification provided by the Company’s and the Parent’s certificate of incorporation and
by-laws, as currently constituted, regardless of any subsequent amendment or modification of the
applicable provisions of such instruments, with such provisions being deemed incorporated herein by
reference. The Company shall advance or cause its subsidiaries to advance all expenses (including
all reasonable legal fees and expenses) reasonably incurred by you in defending any such claim,
action or proceeding, whether civil, administrative, criminal or otherwise, brought against you in
your capacity as an officer of director of the Company or any of its subsidiaries or affiliates,
including the Parent, to the fullest extent permitted under applicable law, provided Executive
provides an undertaking pursuant to which he agrees to repay all such advances if it is ultimately
determined that you are not entitled to indemnification under the circumstances. Notwithstanding
anything else contained in this letter agreement or the Agreement, the above shall not apply where
the liability, loss or expense (including reasonable attorney’s fees and costs incurred in defense
of such claims) incurred by you arise as a result, directly or indirectly, of any claim or action
taken against you by the Company, the Parent or any of their respective subsidiaries or affiliates.



3. Relocation Benefit. You shall be entitled to reimbursement of the relocation costs
specified in Clause 5 of the Agreement only to the extent such costs are incurred no later than the
end of the second calendar year after the calendar year in which your separation from service
occurs. To the extent incurred, those relocation costs shall be reimbursed by the Company within
30 days after receipt of appropriate documentation and in no event later than the end of the third
calendar year after the calendar year of your separation from service. In addition, any payment
due under Clause 5(b) of the Agreement shall be made as soon as practicable after your separation
from service, but in all events within 30 days after such separation. [THIS SECTION 3 APPLIES TO
MR. MCINTYRE ONLY]



4. No Other Changes. You agree that the terms and conditions of the Agreement, to the extent
not modified hereby, will continue to apply as specified in the Agreement.


 


 









 





* * * *




To indicate your acceptance of these updated terms and conditions of your employment, please sign
and return one copy of this letter to me by no later than December 31, 2010.



	 	 	 	 	 
	 	Sincerely,



HEARTWARE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




Agreed to and accepted:



	 	 	 
	 

Write Name: