Exhibit 4.2
Execution Copy
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of this 15th day of September, 2004 by and among World Heart
Corporation, a corporation incorporated under the laws of the Province of
Ontario, Canada (the "Company"), the "Investors" named in that certain Purchase
Agreement by and among the Company and the Investors (the "Purchase Agreement"),
and each Subscriber that has executed a subscription agreement (each a
"Subscription Agreement") in connection with the agency agreement between the
Company and Research Capital Corporation (the "Agency Agreement").
The parties hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Affiliate" means, with respect to any person, any other person which
directly or indirectly controls, is controlled by, or is under common control
with, such person.
"Agent's Shares" means the shares of Common Stock issuable to the US Agent
as part of its compensation pursuant to the terms of an engagement letter dated
August 26, 2004 between the Company and the US Agent.
"Agent's Warrants" means the Agent's Warrants issued to the Canadian Agent
as part of its compensation pursuant to the terms of an agency agreement dated
September 15, 2004 between the Company and the Canadian Agent.
"Agent's Warrant Shares" means the shares of Common Stock issuable upon the
exercise of the Agent's Warrants.
"Business Day" means a day, other than a Saturday or Sunday, on which banks
in Xxx Xxxx Xxxx xxx Xxxxxx, Xxxxxxx are open for the general transaction of
business.
"Canadian Agent" means Research Capital Corporation.
"Common Stock" shall mean the Company's Common Shares, and any securities
into which such shares may hereinafter be reclassified.
"Debentures" shall mean convertible debentures issued by the Company
pursuant to the Purchase Agreement or the Agency Agreement.
"Debenture Shares" shall mean the shares of Common Stock issuable upon the
conversion of the Debentures.
"Domestication Event" shall have the meaning ascribed thereto in Section
2(c)(ii) hereof.
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"Effective Date" shall mean the date a Registration Statement is initially
declared effective by the SEC.
"Effectiveness Deadline" shall have the meaning ascribed thereto in Section
2(c)(i) hereof.
"Interest" shall mean the interest at the rate of 3% per annum (accrued but
not compounded) calculated on the outstanding principal amount of the
Debentures.
"Interest Shares" shall mean shares of Common Stock issuable upon the
conversion of the Interest under the terms and conditions set forth in the
Debentures.
"Investors" shall mean the Investors identified in the Purchase Agreement
and any Affiliate or permitted transferee of any Investor who is a subsequent
holder of any Warrants or Registrable Securities.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Purchasers" shall mean the Investors, the Subscribers, US Agent and
Canadian Agent.
"Register," "registered" and "registration" refer to a registration made by
preparing and filing a Registration Statement or similar document in compliance
with the 1933 Act (as defined below), and the declaration or ordering of
effectiveness of such Registration Statement or document.
"Registrable Securities" shall mean (i) the Debenture Shares, (ii) the
Interest Shares, (iii) the Warrant Shares (iv) the Agent's Shares, (v) the
Agent's Warrant Shares and (vi) any other securities issued or issuable with
respect to or in exchange for Registrable Securities; provided, that, a security
shall cease to be a Registrable Security upon (A) sale pursuant to a
Registration Statement or Rule 144 under the 1933 Act, (B) such security
becoming eligible for sale by the Purchasers pursuant to Rule 144(k) or (C) sale
through the facilities of the Toronto Stock Exchange.
"Registration Statement" shall mean any registration statement of the
Company filed under the 1933 Act that covers the resale of any of the
Registrable Securities pursuant to the provisions of this Agreement, amendments
and supplements to such Registration Statement, including post-effective
amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
"Required Purchasers" means any Purchaser beneficially owning 20% or more
of the Registrable Securities and Purchasers holding a majority of the
Registrable Securities not including the US Agent and the Canadian Agent.
"SEC" means the U.S. Securities and Exchange Commission.
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"Subscribers" shall mean the Subscribers identified in the Subscription
Agreements and any Affiliate or permitted transferee of any Subscriber who is a
subsequent holder of any Debenture, Warrant or Registrable Securities.
"US Agent" means Xxxx Capital Partners.
"Warrants" means the warrants to purchase shares of Common Stock (i) issued
to the Investors pursuant to the Purchase Agreement, the form of which is
attached to the Purchase Agreement as Exhibit A and (ii) issued to the
Subscribers pursuant to the Subscription Agreements.
"Warrant Shares" means the shares of Common Stock issuable upon the
exercise of the Warrants.
"1933 Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
2. Registration.
(a) Registration Statements.
(i) Promptly following the closing of the purchase and sale of
the securities contemplated by the Purchase Agreement and the Subscription
Agreements (the "Closing Date") but no later than sixty (60) days after the
Closing Date (the "Filing Deadline"), the Company shall prepare and file with
the SEC one Registration Statement on Form F-3 (or, if Form F-3 is not then
available to the Company, on such form of registration statement as is then
available to effect a registration for resale of the Registrable Securities),
covering the resale of the Registrable Securities in an amount at least equal to
the aggregate of the Debenture Shares, the Warrant Shares, the Agent's Shares
and the Agent's Warrant Shares and the maximum amount of Interest Shares
issuable under the Debentures. Such Registration Statement shall include the
plan of distribution attached hereto as Exhibit A, subject to such modifications
as may be appropriate or necessary to respond to future interpretations or
comments of the SEC staff. Such Registration Statement also shall cover, to the
extent allowable under the 1933 Act and the rules promulgated thereunder
(including Rule 416), such indeterminate number of additional shares of Common
Stock resulting from stock splits, stock dividends or similar transactions with
respect to the Registrable Securities. The Company shall use its reasonable best
efforts to obtain from each person who now has piggyback registration rights a
waiver of those rights with respect to the Registration Statement. The
Registration Statement (and each amendment or supplement thereto, and each
request for acceleration of effectiveness thereof) shall be provided in
accordance with Section 3(c) to the Purchasers and their counsel prior to its
filing or other submission. If a Registration Statement covering the Registrable
Securities is not filed with the SEC on or prior to the Filing Deadline, the
Company will make pro rata payments to each Purchaser except the US Agent and
Canadian Agent, as liquidated damages and not as a penalty, in an amount equal
to 1.5% of the aggregate amount invested by such Purchaser for each 30-day
period or pro rata for any portion thereof following the date by which such
Registration
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Statement should have been filed for which no Registration Statement is filed
with respect to the Registrable Securities. Such payments shall be in partial
compensation to the Purchasers other than the US Agent and the Canadian Agent,
and shall not constitute such Purchasers' exclusive remedy for such events. Such
payments shall be made to such Purchasers in cash.
(b) Expenses. The Company will pay all expenses associated with
each registration, including filing and printing fees, counsel and accounting
fees and expenses, costs associated with clearing the Registrable Securities for
sale under applicable state securities laws, listing fees, fees and expenses of
one counsel to the Purchasers and the Purchasers' reasonable expenses in
connection with the registration, but excluding discounts, commissions, fees of
underwriters, selling brokers, dealer managers or similar securities industry
professionals with respect to the Registrable Securities being sold.
(c) Effectiveness.
(i) The Company shall use commercially reasonable efforts to have
the Registration Statement declared effective as soon as practicable. The
Company shall notify the Purchasers by facsimile or e-mail as promptly as
practicable, and in any event, within twenty-four (24) hours, after any
Registration Statement is declared effective and shall simultaneously provide
the Purchasers with copies of any related Prospectus to be used in connection
with the sale or other disposition of the securities covered thereby. If (A) a
Registration Statement covering the Registrable Securities is not declared
effective by the SEC within one hundred and eighty (180) days after the Closing
Date (the "Effectiveness Deadline") (subject to extension as provided in clause
(ii) below), or (B) after a Registration Statement has been declared effective
by the SEC, sales cannot be made pursuant to such Registration Statement for any
reason (including without limitation by reason of a stop order, or the Company's
failure to update the Registration Statement), but excluding the inability of
any Purchaser to sell the Registrable Securities covered thereby due to market
conditions and except as excused pursuant to subparagraph (ii) below, then the
Company will make pro rata payments to each Purchaser except the US Agent and
the Canadian Agent, as liquidated damages and not as a penalty, in an amount
equal to 1.5% of the aggregate amount invested by such Purchaser, for each
30-day period or pro rata for any portion thereof following the date by which
such Registration Statement should have been effective (the "Blackout Period");
provided, however, that such liquidated damages shall accrue on any Registrable
Securities disposed of through the facilities of the TSX, if at all, only
through the date of such disposition. Such payments shall be in partial
compensation to the Purchasers other than the US Agent and the Canadian Agent,
and shall not constitute such Purchasers' exclusive remedy for such events. The
amounts payable as liquidated damages pursuant to this paragraph shall be paid
monthly within three (3) Business Days of the last day of each month following
the commencement of the Blackout Period until the termination of the Blackout
Period. Such payments shall be made to such Purchasers in cash.
(ii) In the event that prior to the Effective Date of the
Registration Statement, (A) the Company ceases to be a "foreign private issuer"
as defined in Rule 405 of Regulation C promulgated under the 1933 Act (a
"Domestication Event") and (B) as a result of such Domestication Event the
Company must convert the Registration Statement into a registration statement on
Form S-3 (or any other registration form then applicable to the Company as a
result of the Domestication Event), the Company shall promptly (and in no event
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more than 15 days after the Domestication Event) prepare and file with the SEC
an amendment to the Registration Statement to effect such conversion. If a
Domestication Event occurs within thirty days of the Effectiveness Deadline, the
Effectiveness Deadline shall be extended for the number of days (not to exceed
15 days) elapsed in the period commencing on and including the date of the
Domestication Event and ending on but excluding the date that the Company files
an amendment to the Registration Statement effecting the conversion.
(iii) No more than twice in any twelve (12) month period for an
aggregate of not more than thirty (30) days , the Company may delay the
disclosure of material non-public information concerning the Company, by
suspending the use of any Prospectus included in any registration contemplated
by this Section containing such information, the disclosure of which at the time
is not, in the good faith opinion of the Company, in the best interests of the
Company (an "Allowed Delay"); provided, that the Company shall promptly (a)
notify the Purchasers in writing of the existence of (but in no event, without
the prior written consent of a Purchaser, shall the Company disclose to such
Purchaser any of the facts or circumstances regarding) material non-public
information giving rise to an Allowed Delay, and (b) advise the Purchasers in
writing to cease all sales under the Registration Statement until the end of the
Allowed Delay.
(d) Underwritten Offering. If any offering pursuant to a
Registration Statement pursuant to Section 2(a) hereof involves an underwritten
offering, the Company shall have the right to select an investment banker and
manager to administer the offering, which investment banker or manager shall be
reasonably satisfactory to the Required Purchasers.
3. Company Obligations. The Company will use commercially reasonable
efforts to effect the registration of the Registrable Securities in accordance
with the terms hereof, and pursuant thereto the Company will, as expeditiously
as possible:
(a) use commercially reasonable efforts to cause such
Registration Statement to become effective and to remain continuously effective
for a period that will terminate upon the earlier of (i) the date on which all
Registrable Securities covered by such Registration Statement as amended from
time to time, have been sold, and (ii) the date on which all Registrable
Securities covered by such Registration Statement may be sold pursuant to Rule
144(k);
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement and the Prospectus as
may be necessary to keep the Registration Statement effective for the period
specified in Section 3(a) and to comply with the provisions of the 1933 Act and
the 1934 Act with respect to the distribution of all of the Registrable
Securities covered thereby;
(c) provide copies to and permit counsel designated by the
Purchasers to review each Registration Statement and all amendments and
supplements thereto no fewer than three (3) Business Days prior to their filing
with the SEC and not file any document to which such counsel reasonably objects;
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(d) furnish to the Purchasers and their legal counsel (i)
promptly after the same is prepared and publicly distributed, filed with the
SEC, or received by the Company (but not later than two (2) Business Days after
the filing date, receipt date or sending date, as the case may be) one (1) copy
of any Registration Statement and any amendment thereto, each preliminary
prospectus and Prospectus and each amendment or supplement thereto, and each
letter written by or on behalf of the Company to the SEC or the staff of the
SEC, and each item of correspondence from the SEC or the staff of the SEC, in
each case relating to such Registration Statement (other than any portion of any
thereof which contains information for which the Company has sought confidential
treatment), and (ii) such number of copies of a Prospectus, including a
preliminary prospectus, and all amendments and supplements thereto and such
other documents as each Purchaser may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such Purchaser that are
covered by the related Registration Statement;
(e) in the event the Company selects an underwriter for the
offering, the Company shall enter into and perform its reasonable obligations
under an underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
underwriter of such offering;
(f) if required by the underwriter, or if any Purchaser is
described in the Registration Statement as an underwriter, the Company shall
furnish, on the effective date of the Registration Statement (except with
respect to clause (i) below) and on the date that Registrable Securities are
delivered to an underwriter, if any, for sale in connection with the
Registration Statement (including any Purchaser deemed to be an underwriter),
(i) (A) in the case of an underwritten offering, an opinion, dated as of the
closing date of the sale of Registrable Securities to the underwriters, from
independent legal counsel representing the Company for purposes of such
Registration Statement, in form, scope and substance as is customarily given in
an underwritten public offering, addressed to the underwriters and the
Purchasers participating in such underwritten offering or (B) in the case of an
"at the market" offering, an opinion, dated as of or promptly after the
effective date of the Registration Statement to the Purchasers, from independent
legal counsel representing the Company for purposes of such Registration
Statement, in form, scope and substance as is customarily given in a public
offering, addressed to the Purchasers, and (ii) a letter, dated as of the
effective date of such Registration Statement and confirmed as of the applicable
dates described above, from the Company's independent certified public
accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters (including any Purchaser deemed to be an
underwriter);
(g) use commercially reasonable efforts to (i) prevent the
issuance of any stop order or other suspension of effectiveness and, (ii) if
such order is issued, obtain the withdrawal of any such order at the earliest
possible moment;
(h) prior to any public offering of Registrable Securities, use
commercially reasonable efforts to register or qualify or cooperate with the
Purchasers and their counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions requested by the Purchasers
and do any and all other commercially reasonable acts or things necessary or
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advisable to enable the distribution in such jurisdictions of the Registrable
Securities covered by the Registration Statement; provided, however, that the
Company shall not be required in connection therewith or as a condition thereto
to (i) qualify to do business in any jurisdiction where it would not otherwise
be required to qualify but for this Section 3(h), (ii) subject itself to general
taxation in any jurisdiction where it would not otherwise be so subject but for
this Section 3(h), or (iii) file a general consent to service of process in any
such jurisdiction;
(i) use commercially reasonable efforts to cause all Registrable
Securities covered by a Registration Statement to be listed on each securities
exchange, interdealer quotation system or other market on which similar
securities issued by the Company are then listed;
(j) immediately notify the Purchasers, at any time when a
Prospectus relating to Registrable Securities is required to be delivered under
the 1933 Act, upon discovery that, or upon the happening of any event as a
result of which, the Prospectus included in a Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and at the
request of any such holder, promptly prepare and furnish to such holder a
reasonable number of copies of a supplement to or an amendment of such
Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; and
(k) otherwise use commercially reasonable efforts to comply with
all applicable rules and regulations of the SEC under the 1933 Act and the 1934
Act, take such other actions as may be reasonably necessary to facilitate the
registration of the Registrable Securities hereunder; and make available to its
security holders, as soon as reasonably practicable, but not later than the
Availability Date (as defined below), an earnings statement covering a period of
at least twelve (12) months, beginning after the effective date of each
Registration Statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the 1933 Act, including Rule 158 promulgated thereunder (for
the purpose of this subsection 3(k), "Availability Date" means the 45th day
following the end of the fourth fiscal quarter that includes the effective date
of such Registration Statement, except that, if such fourth fiscal quarter is
the last quarter of the Company's fiscal year, "Availability Date" means the
90th day after the end of such fourth fiscal quarter).
(l) with a view to making available to the Purchasers the
benefits of Rule 144 (or its successor rule) and any other rule or regulation of
the SEC that may at any time permit the Purchasers to sell shares of Common
Stock to the public without registration, the Company covenants and agrees to:
(i) make and keep public information available, as those terms are understood
and defined in Rule 144, until the earlier of (A) six months after such date as
all of the Registrable Securities may be resold pursuant to Rule 144(k) or any
other rule of similar effect or (B) such date as all of the Registrable
Securities shall have been resold; (ii) file with the SEC in a timely manner all
reports and other documents required of the Company under the 1934 Act; and
(iii) furnish to each Purchaser upon request, as long as such Purchaser owns any
Registrable Securities, (A) a written statement by the Company that it has
complied with the
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reporting requirements of the 1934 Act, (B) a copy of the Company's most recent
Annual Report on Form 40-F (or such other form then available to the Company),
and (C) such other information as may be reasonably requested in order to avail
such Purchaser of any rule or regulation of the SEC that permits the selling of
any such Registrable Securities without registration.
4. Due Diligence Review; Information. The Company shall make available,
during normal business hours, for inspection and review by the Purchasers,
advisors to and representatives of the Purchasers (who may or may not be
affiliated with the Purchasers and who are reasonably acceptable to the
Company), any underwriter participating in any disposition of shares of Common
Stock on behalf of the Purchasers pursuant to a Registration Statement or
amendments or supplements thereto or any blue sky, NASD or other filing, all
financial and other records, all SEC Filings (as defined in the Purchase
Agreement) and other filings with the SEC, and all other corporate documents and
properties of the Company as may be reasonably necessary for the purpose of such
review, and cause the Company's officers, directors and employees, within a
reasonable time period, to supply all such information reasonably requested by
the Purchasers or any such representative, advisor or underwriter in connection
with such Registration Statement (including, without limitation, in response to
all questions and other inquiries reasonably made or submitted by any of them),
prior to and from time to time after the filing and effectiveness of the
Registration Statement for the sole purpose of enabling the Purchasers and such
representatives, advisors and underwriters and their respective accountants and
attorneys to conduct initial and ongoing due diligence with respect to the
Company and the accuracy of such Registration Statement.
The Company shall not disclose material nonpublic information to the
Purchasers, or to advisors to or representatives of the Purchasers, unless prior
to disclosure of such information the Company identifies such information as
being material nonpublic information and provides the Purchasers, such advisors
and representatives with the opportunity to accept or refuse to accept such
material nonpublic information for review and any Purchaser wishing to obtain
such information enters into an appropriate confidentiality agreement with the
Company with respect thereto.
5. Obligations of the Purchasers.
(a) Each Purchaser shall furnish in writing to the Company such
information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it, as
shall be reasonably required to effect the registration of such Registrable
Securities and shall execute such documents in connection with such registration
as the Company may reasonably request. At least five (5) Business Days prior to
the first anticipated filing date of any Registration Statement, the Company
shall notify each Purchaser of the information the Company requires from such
Purchaser if such Purchaser elects to have any of the Registrable Securities
included in the Registration Statement. A Purchaser shall provide such
information to the Company at least two (2) Business Days prior to the first
anticipated filing date of such Registration Statement if such Purchaser elects
to have any of the Registrable Securities included in the Registration
Statement.
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(b) Each Purchaser, by its acceptance of the Registrable
Securities agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of a Registration
Statement hereunder, unless such Purchaser has notified the Company in writing
of its election to exclude all of its Registrable Securities from such
Registration Statement.
(c) In the event the Company, at the request of the Purchasers,
determines to engage the services of an underwriter, such Purchaser agrees to
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, including, without limitation, customary indemnification and
contribution obligations, with the managing underwriter of such offering and
take such other actions as are reasonably required in order to expedite or
facilitate the dispositions of the Registrable Securities.
(d) Each Purchaser agrees that, upon receipt of any notice from
the Company of either (i) the commencement of an Allowed Delay pursuant to
Section 2(c)(ii) or (ii) the happening of an event pursuant to Section 3(j)
hereof, such Purchaser will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities, until the Purchaser's receipt of the copies of the supplemented or
amended prospectus filed with the SEC and declared effective and, if so directed
by the Company, the Purchaser shall deliver to the Company (at the expense of
the Company) or destroy (and deliver to the Company a certificate of
destruction) all copies in the Purchaser's possession of the Prospectus covering
the Registrable Securities current at the time of receipt of such notice.
(e) No Purchaser may participate in any third party underwritten
registration hereunder unless it (i) agrees to sell the Registrable Securities
on the basis provided in any underwriting arrangements in usual and customary
form entered into by the Company, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (iii) agrees to pay its pro rata share of all underwriting
discounts and commissions. Notwithstanding the foregoing, no Purchaser shall be
required to make any representations to such underwriter, other than those with
respect to itself and the Registrable Securities owned by it, including its
right to sell the Registrable Securities, and any indemnification in favor of
the underwriter by the Purchasers shall be several and not joint and limited in
the case of any Purchaser, to the proceeds received by such Purchaser from the
sale of its Registrable Securities. The scope of any such indemnification in
favor of an underwriter shall be limited to the same extent as the indemnity
provided in Section 6(b) hereof.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify
and hold harmless each Purchaser and its officers, directors, members, employees
and agents, successors and assigns, and each other person, if any, who controls
such Purchaser within the meaning of the 1933 Act, against any losses, claims,
damages or liabilities, joint or several, to which they may become subject under
the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon: (i)
any untrue statement or alleged untrue statement of any material fact contained
in any Registration
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Statement, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof; (ii) any blue sky
application or other document executed by the Company specifically for that
purpose or based upon written information furnished by the Company filed in any
state or other jurisdiction in order to qualify any or all of the Registrable
Securities under the securities laws thereof (any such application, document or
information herein called a "Blue Sky Application"); (iii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; (iv) any violation
by the Company or its agents of any rule or regulation promulgated under the
1933 Act applicable to the Company or its agents and relating to action or
inaction required of the Company in connection with such registration; or (v)
any failure to register or qualify the Registrable Securities included in any
such Registration in any state where the Company or its agents has affirmatively
undertaken or agreed in writing that the Company will undertake such
registration or qualification on a Purchaser's behalf (the undertaking of any
underwriter chosen by the Company being attributed to the Company) and will
reimburse such Purchaser, and each such officer, director or member and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by such Purchaser or any such controlling person in writing
specifically for use in such Registration Statement or Prospectus.
(b) Indemnification by the Purchasers. In connection with any
registration pursuant to the terms of this Agreement, each Purchaser will
furnish to the Company in writing such information as the Company reasonably
requests concerning the holders of Registrable Securities or the proposed manner
of distribution for use in connection with any Registration Statement or
Prospectus and agrees, severally but not jointly, to indemnify and hold
harmless, to the fullest extent permitted by law, the Company, its directors,
officers, employees, stockholders and each person who controls the Company
(within the meaning of the 0000 Xxx) against any losses, claims, damages,
liabilities and expense (including reasonable attorney fees) resulting from any
untrue statement of a material fact or any omission of a material fact required
to be stated in the Registration Statement or Prospectus or preliminary
prospectus or amendment or supplement thereto or necessary to make the
statements therein not misleading, to the extent, but only to the extent that
such untrue statement or omission is contained in any information furnished in
writing by such Purchaser to the Company specifically for inclusion in such
Registration Statement or Prospectus or amendment or supplement thereto. In no
event shall the liability of a Purchaser be greater in amount than the dollar
amount of the proceeds (net of all expense paid by such Purchaser in connection
with any claim relating to this Section 6 and the amount of any damages such
holder has otherwise been required to pay by reason of such untrue statement or
omission) received by such Purchaser upon the sale of the Registrable Securities
included in the Registration Statement giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. Any person entitled
to indemnification hereunder shall (i) give prompt notice to the indemnifying
party of any claim with respect to which it seeks indemnification and (ii)
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party; provided that any person
entitled to indemnification hereunder shall have the right to employ
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separate counsel and to participate in the defense of such claim, but the
fees and expenses of such counsel shall be at the expense of such person unless
(a) the indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the indemnifying party with
respect to such claims (in which case, if the person notifies the indemnifying
party in writing that such person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such person); and
provided, further, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
hereunder, except to the extent that such failure to give notice shall
materially adversely affect the indemnifying party in the defense of any such
claim or litigation. It is understood that the indemnifying party shall not, in
connection with any proceeding in the same jurisdiction, be liable for fees or
expenses of more than one separate firm of attorneys at any time for all such
indemnified parties. No indemnifying party will, except with the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
that 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 of such claim or litigation.
(d) Contribution. If for any reason the indemnification provided
for in the preceding paragraphs (a) and (b) is unavailable to an indemnified
party or insufficient to hold it harmless, other than as expressly specified
therein, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of
the indemnified party and the indemnifying party, as well as any other relevant
equitable considerations. No person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be entitled to
contribution from any person not guilty of such fraudulent misrepresentation. In
no event shall the contribution obligation of a holder of Registrable Securities
be greater in amount than the dollar amount of the proceeds (net of all expenses
paid by such holder in connection with any claim relating to this Section 6 and
the amount of any damages such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission) received by it upon the sale of the Registrable Securities giving rise
to such contribution obligation.
7. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended only by
a writing signed by the Company and the Required Purchasers. The Company may
take any action herein prohibited, or omit to perform any act herein required to
be performed by it, only if the Company shall have obtained the written consent
to such amendment, action or omission to act, of the Required Purchasers.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made (i) as set forth in Section 9.4 of the
Purchase Agreement and (ii) to each Subscriber at the address listed on Page 1
of its respective Subscription Agreement.
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(c) Assignments and Transfers by Purchasers. The provisions of
this Agreement shall be binding upon and inure to the benefit of the Purchasers
and their respective successors and assigns. A Purchaser except the US Agent or
Canadian Agent may transfer or assign, in whole or from time to time in part, to
one or more persons its rights hereunder in connection with the transfer of
Registrable Securities by such Purchaser to such person, provided that such
Purchaser complies with all laws applicable thereto and provides written notice
of assignment to the Company promptly after such assignment is effected.
(d) Assignments and Transfers by the Company. This Agreement may
not be assigned by the Company (whether by operation of law or otherwise)
without the prior written consent of the Required Purchasers, provided, however,
that the Company may assign its rights and delegate its duties hereunder to any
surviving or successor corporation in connection with a merger or consolidation
of the Company with another corporation, or a sale, transfer or other
disposition of all or substantially all of the Company's assets to another
corporation, without the prior written consent of the Required Purchasers, after
notice duly given by the Company to each Purchaser.
(e) Benefits of the Agreement. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties. 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.
(f) Counterparts; Faxes. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may also
be executed via facsimile, which shall be deemed an original.
(g) Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(h) Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it
were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereby
waive any provision of law which renders any provisions hereof prohibited or
unenforceable in any respect.
(i) Further Assurances. The parties shall execute and deliver all
such further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
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(j) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
(k) Governing Law; Consent to Jurisdiction. This Agreement shall
be governed by, and construed in accordance with, the internal laws of the State
of New York without regard to the choice of law principles thereof. Each of the
parties hereto irrevocably submits to the exclusive jurisdiction of the courts
of the State of New York located in New York County and the United States
District Court for the Southern District of New York for the purpose of any
suit, action, proceeding or judgment relating to or arising out of this
Agreement and the transactions contemplated hereby. Service of process in
connection with any such suit, action or proceeding may be served on each party
hereto anywhere in the world by the same methods as are specified for the giving
of notices under this Agreement. Each of the parties hereto irrevocably consents
to the jurisdiction of any such court in any such suit, action or proceeding and
to the laying of venue in such court. Each party hereto irrevocably waives any
objection to the laying of venue of any such suit, action or proceeding brought
in such courts and irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused their
duly authorized officers to execute this Agreement as of the date first above
written.
The Company: WORLD HEART CORPORATION
By:
-------------------------
Name:
Title:
The Investor:
By:
-------------------------
Name:
Title:
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Exhibit A
Plan of Distribution
The selling stockholders, which as used herein includes donees,
pledgees, transferees or other successors-in-interest selling shares of common
stock or interests in shares of common stock received after the date of this
prospectus from a selling stockholder as a gift, pledge, partnership
distribution or other transfer, may, from time to time, sell, transfer or
otherwise dispose of any or all of their shares of common stock or interests in
shares of common stock on any stock exchange, market or trading facility on
which the shares are traded or in private transactions. These dispositions may
be at fixed prices, at prevailing market prices at the time of sale, at prices
related to the prevailing market price, at varying prices determined at the time
of sale, or at negotiated prices.
The selling stockholders may use any one or more of the following methods
when disposing of shares or interests therein:
- ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
- block trades in which the broker-dealer will attempt to sell the shares
as agent, but may position and resell a portion of the block as principal to
facilitate the transaction;
- purchases by a broker-dealer as principal and resale by the broker-dealer
for its account;
- an exchange distribution in accordance with the rules of the applicable
exchange;
- privately negotiated transactions;
- short sales effected after the date the registration statement of which
this Prospectus is a part is declared effective by the SEC;
- through the writing or settlement of options or other hedging
transactions, whether through an options exchange or otherwise;
- broker-dealers may agree with the selling stockholders to sell a
specified number of such shares at a stipulated price per share;
- a combination of any such methods of sale; and
- any other method permitted pursuant to applicable law.
The selling stockholders may, from time to time, pledge or grant a security
interest in some or all of the shares of common stock owned by them and, if they
default in the performance of their secured obligations, the pledgees or secured
parties may offer and sell the shares of common stock, from time to time, under
this prospectus, or under an amendment to this
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prospectus under Rule 424(b)(3) or other applicable provision of the Securities
Act amending the list of selling stockholders to include the pledgee, transferee
or other successors in interest as selling stockholders under this prospectus.
The selling stockholders also may transfer the shares of common stock in other
circumstances, in which case the transferees, pledgees or other successors in
interest will be the selling beneficial owners for purposes of this prospectus.
In connection with the sale of our common stock or interests therein, the
selling stockholders may enter into hedging transactions with broker-dealers or
other financial institutions, which may in turn engage in short sales of the
common stock in the course of hedging the positions they assume. The selling
stockholders may also sell shares of our common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The selling
stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such transaction).
The aggregate proceeds to the selling stockholders from the sale of the
common stock offered by them will be the purchase price of the common stock less
discounts or commissions, if any. Each of the selling stockholders reserves the
right to accept and, together with their agents from time to time, to reject, in
whole or in part, any proposed purchase of common stock to be made directly or
through agents. We will not receive any of the proceeds from this offering. Upon
any exercise of the warrants by payment of cash, however, we will receive the
exercise price of the warrants.
The selling stockholders also may resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the Securities Act of
1933, provided that they meet the criteria and conform to the requirements of
that rule.
The selling stockholders and any underwriters, broker-dealers or agents
that participate in the sale of the common stock or interests therein may be
"underwriters" within the meaning of Section 2(11) of the Securities Act. Any
discounts, commissions, concessions or profit they earn on any resale of the
shares may be underwriting discounts and commissions under the Securities Act.
Selling stockholders who are "underwriters" within the meaning of Section 2(11)
of the Securities Act will be subject to the prospectus delivery requirements of
the Securities Act.
To the extent required, the shares of our common stock to be sold, the
names of the selling stockholders, the respective purchase prices and public
offering prices, the names of any agents, dealer or underwriter, any applicable
commissions or discounts with respect to a particular offer will be set forth in
an accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this prospectus.
In order to comply with the securities laws of some states, if applicable,
the common stock may be sold in these jurisdictions only through registered or
licensed brokers or dealers. In addition, in some states the common stock may
not be sold unless it has been registered or
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qualified for sale or an exemption from registration or qualification
requirements is available and is complied with.
We have advised the selling stockholders that the anti-manipulation rules
of Regulation M under the Exchange Act may apply to sales of shares in the
market and to the activities of the selling stockholders and their affiliates.
In addition, we will make copies of this prospectus (as it may be supplemented
or amended from time to time) available to the selling stockholders for the
purpose of satisfying the prospectus delivery requirements of the Securities
Act. The selling stockholders may indemnify any broker-dealer that participates
in transactions involving the sale of the shares against certain liabilities,
including liabilities arising under the Securities Act.
We have agreed to indemnify the selling stockholders against liabilities,
including liabilities under the Securities Act and state securities laws,
relating to the registration of the shares offered by this prospectus.
We have agreed with the selling stockholders to keep the registration
statement of which this prospectus constitutes a part effective until the
earlier of (1) such time as all of the shares covered by this prospectus have
been disposed of pursuant to and in accordance with the registration statement
or (2) the date on which the shares may be sold pursuant to Rule 144(k) of the
Securities Act.
