EX-4.1
Amendment to Exchange Agreement dated as of May 8, 2002
by and between World Heart Corporation and Xxxxxxx
Lifesciences LLC
1
AMENDMENT TO EXCHANGE AGREEMENT
THIS AMENDMENT TO EXCHANGE AGREEMENT ("Amendment") is dated as of May 8,
2002 (the "Effective Date"), by and between WorldHeart Corporation, an Ontario
corporation ("World Heart") and Xxxxxxx Lifesciences LLC, a Delaware limited
liability company ("Xxxxxxx").
RECITALS
X. Xxxxxxx and World Heart entered into that certain Exchange Agreement
dated as of May 24, 2000 ("Original Agreement"). Capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to them in the
Original Agreement. The Original Agreement together with this Amendment shall be
referred to herein as the "Agreement" and references to the "Agreement" in the
Original Agreement shall include this Amendment.
B. Pursuant to the Original Agreement, Xxxxxxx received a right to exchange
Put Shares of the preferred stock of World Heart Inc., a Delaware corporation.
X. Xxxxxxx and WorldHeart now desire to amend the Original Agreement and to
agree to amend the terms of Xxxxxxx' Put Shares upon the terms and conditions
contained herein.
AMENDMENT
NOW THEREFORE, in consideration of the foregoing and other consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Amendment of Section 2a. The first sentence of Section 2a of the
Original Agreement is hereby deleted in its entirety and the following language
inserted in place thereof:
"(a) For a period of two (2) years, commencing on the
third anniversary of the Initial Issue Date (the "Put Notice
Period"), Xxxxxxx shall have the right (the "Put Right") to
require WorldHeart to acquire all, but not less than all, of
the Put Shares in exchange for 4,981,128 shares of
WorldHeart Common Shares (or such number as may be
determined pursuant to the adjustments provided in Section 3
hereof)(the "WorldHeart Shares")."
2. Covenant to Reduce Dividend Rate of Put Shares. As consideration for the
delay and extension of the Put Notice Period, the parties hereby agree that the
dividend of the Put Shares shall be decreased effective as of July 1, 2002 by
one percent (1%) from the levels set forth in that certain Certificate of
Designation of Series A Cumulative Participating Preferred Stock of World Heart
Inc. executed on June 29, 2000. Xxxxxxx and WorldHeart each agree to execute any
and all consents reasonably required for the implementation of the agreement
contained in this paragraph.
3. Entire Agreement; No Waiver. This Amendment and the Original Agreement
contain the entire agreement between the parties relating to the subject matter
hereof. None of the terms of this Amendment or the Original Agreement shall be
deemed to be waived or amended by either party unless such waiver or amendment
specifically references this Amendment and the Original Agreement and is in
writing signed by the party to be bound. Waiver by either party of any default
by the other will not be deemed a waiver by such party of any default by the
other that may thereafter occur.
2
4. No Additional Modification of Original Agreement. Except as expressly
set forth in this Amendment, the Original Agreement shall remain unmodified and
in full force and effect. In the event of any conflict, ambiguity or
inconsistency between the terms and provisions of this Amendment and the terms
and provisions of the Original Agreement, the terms and provisions of this
Amendment shall govern and control.
5. Governing Law; Severability. This Amendment shall be governed by and
construed in accordance with the internal laws of the State of New York.
6. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be considered an original and all of which
shall constitute one and the same instrument.
[signature page follows]
3
IN WITNESS WHEREOF, authorized representatives of the parties have executed
this Amendment as of the Effective Date.
WORLD HEART: World Heart Corporation,
an Ontario corporation
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------
Title: President and CEO
XXXXXXX: Xxxxxxx Lifesciences LLC,
a Delaware limited liability company
By: /s/ Xxx X. Xxxxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
4
