Exhibit 99.7
REGISTRATION RIGHTS
AGREEMENT
This Registration
Rights Agreement (the “Agreement”) is made and entered
into as of this 11th day of December, 2007 by and among World Heart
Corporation, a corporation continued under the laws of the Canada
(the “Company”), and Abiomed, Inc. (the
“Investor”) in connection with that certain Note
Purchase Agreement by and among the Company, World Heart Inc. and
the Investor dated as of December 11, 2007 (the
“Purchase Agreement”). Capitalized terms used
herein have the respective meanings ascribed thereto in the
Purchase Agreement unless otherwise defined herein.
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.
“
Business Day ” means a day, other than a Saturday or
Sunday, on which banks in New York City and Oakland, California are
open for the general transaction of business.
“ Common
Stock ” shall mean the Company’s Common Shares, and
any securities into which such shares may hereinafter be
reclassified.
“
Control ” means the possession, direct or indirect, of
the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
“
Effectiveness Period ” shall have the meaning assigned
to it in Section 3(a) hereof.
“
Investor ” shall mean the Investor and any Affiliate
or permitted transferee of the Investor who is a subsequent holder
of any Registrable Securities.
“
Note ” shall mean that certain secured convertible
promissory note issued by the Company to the Investor on the date
hereof.
“
Person ” means an individual, corporation,
partnership, limited liability company, trust, business trust,
association, joint stock company, joint venture, sole
proprietorship, unincorporated organization, governmental authority
or any other form of entity not specifically listed
herein.
“
Prospectus ” shall mean (i) 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, and
(ii) any “free writing prospectus” as defined in
Rule 405 under the 1933 Act.
“
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
Shares, (ii) the Warrant Shares and (ii) 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, or
(B) such security becoming eligible for sale by the Investor
pursuant to Rule 144(k).
“
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.
“
Shares ” shall mean the shares of Common Stock issued
or issuable pursuant to the conversion of the Note, including,
without limitation, any shares from the conversion of interest on
the Note and any shares issuable as a result of anti-dilution
adjustments set forth in the Note.
“ Warrant
Shares ” shall mean the shares of Common Stock issued or
issuable pursuant to the exercise of the Warrant.
“
Warrant ” shall mean the Common Stock purchase warrant
issued by the Company to the Investor on the date hereof, initially
representing the right to purchase 3,400,000 shares of Common
Stock.
“ 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)
Mandatory Registration Statement .
(i)
Promptly following the Closing but no later than the earlier of
(A) one hundred twenty (120) days after the Closing Date or
(B) the date on which the Company files any other registration
statement ( but
excluding in all cases any registrations to be effected on Forms
S-4 or S-8 or other applicable successor Forms )(the “Filing Deadline”),
the Company shall prepare and file with the SEC one Registration
Statement on Form S-3 (or, if Form S-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. Such Registration Statement shall include the
plan of distribution attached hereto as Exhibit A ,
subject to any SEC comments thereon. Such Registration Statement
also shall cover, to the extent allowable under the 1933 Act and
the rules promulgated thereunder (including Rule 416),
such indeterminate
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number of additional
shares of Common Stock resulting from stock splits, stock dividends
or similar transactions with respect to the Registrable
Securities. 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 Investor and its 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 payments to the
Investor, as liquidated damages and not as a penalty, in an amount
equal to 1.0% of additional interest otherwise payable on the
aggregate principal amount of the Note for each 30-day period or
pro rata for any portion thereof following the Filing Deadline for
which no Registration Statement is filed with respect to the
Registrable Securities. Such payments shall constitute the
Investor’s exclusive monetary remedy for such events, but
shall not affect the right of the Investor to seek injunctive
relief. Such payments shall be made to the Investor in
cash.
(ii)
Notwithstanding any other provisions of this Section 2(a), if
at any time the SEC takes the position that the offering of the
Registrable Securities as contemplated by the Registration
Statement violates the provisions of Rule 415 under the 1933
Act because of the number of shares included in such Registration
Statement, the Company shall (i) remove from the Registration
Statement such portion of the Registrable Securities and/or
(ii) agree to such restrictions and limitations on the
registration and resale of the Registrable Securities as the SEC
may require to assure the Company’s compliance with the
requirements of Rule 415. Any cut-back imposed pursuant
to this Section 2(a)(ii) shall be allocated pro rata
among the Registrable Securities and any other securities of the
Company being registered pursuant to such Registration
Statement. The provisions of this
Section 2(a)(ii) shall not limit or otherwise affect the
obligations of the Company, which are absolute and unconditional,
to effect the registration of the Registrable Securities as
provided in this Agreement. In the event of any cut-back
imposed pursuant to this Section 2(a)(ii), the Company shall
use commercially reasonable efforts to effect the registration of
any Registrable Securities excluded from a Registration Statement
as promptly as practicable.
(iii)
In the event that the number of Registrable Shares increases as a
result of any anti-dilution or other adjustment contained in the
Note or the Warrant and such Registrable Shares were not permitted
under the 1933 Act to be included in the Registration Statement the
Company shall use commercially reasonable efforts to effect the
registration of such additional Registrable Securities as promptly
as practicable.
(b)
Expenses . The Company will pay all expenses
associated with each registration (including without limitation the
registrations provided for in Section 2(d) hereof),
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 Investor and the
Investor’s 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 reasonable best efforts to have the
Registration Statement declared effective as soon as
practicable. The Company shall notify the Investor
by
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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 Investor 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 on or prior to the earlier of
(i) five (5) Business Days after the SEC shall have
informed the Company that no review of the Registration Statement
will be made or that the SEC has no further comments on the
Registration Statement, or (ii) the 180 th day
after the Closing Date, 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 Investor 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 payments to the Investor as liquidated damages and not as
a penalty, in an amount equal to 1.0% of additional interest
otherwise payable on the aggregate principal amount of the Note 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 no liquidated damages shall be payable to the Investor
resulting solely from the application of the provisions of
Section 2(a)(ii). Such payments shall constitute the
Investor’s exclusive monetary remedy for such events, but
shall not affect the right of the Investor to seek injunctive
relief. Such payments shall be made to the Investor in
cash. 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.
(ii)
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 nonpublic 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 Investor in writing of
the existence of (but in no event, without the prior written
consent of the Investor, shall the Company disclose to the Investor
any of the facts or circumstances regarding) material nonpublic
information giving rise to an Allowed Delay, and (b) advise
the Investor in writing to cease all sales under the Registration
Statement until the end of the Allowed Delay.
(d)
“Piggyback” Registration .
(i)
If, at any time during the Effectiveness Period, the Company
proposes to register any of its Common Stock under the 1933 Act,
whether as a result of a primary or secondary offering of Common
Stock or pursuant to registration rights granted to holders of
other securities of the Company (but excluding in all cases any
registrations to be effected on Forms S-4 or S-8 or other
applicable successor Forms), the Company shall, each such time,
give to the Investor holding Registrable Securities written notice of its intent to do so.
Upon the written request of the Investor given within ten
(10) days after the giving of any such notice by the Company,
the Company shall use reasonable efforts to cause to be included in
such registration the Registrable Securities of the Investor, to the extent requested to be
registered; provided that (i) the Investor agrees to
sell those of its Registrable Securities to be included in
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such registration in
the same manner and on the same terms and conditions as the other
shares of Common Stock which the Company proposes to register, and
(ii) if the registration is to include shares of Common Stock
to be sold for the account of the Company or any party exercising
demand registration rights pursuant to any other agreement with the
Company, the proposed managing underwriter does not advise the
Company that in its opinion the inclusion of the Investor’s
Registrable Securities (without any reduction in the number of shares
to be sold for the account of the Company or such party exercising
demand registration rights) is likely to affect materially and
adversely the success of the offering or the price that would be
received for any shares of Common Stock offered, in which case the
rights of the Investor shall be as provided in subsection
2(d)(ii) hereof.
(ii)
If a registration pursuant to Section 2(d) hereof
involves an underwritten offering and the managing underwriter
shall advise the Company in writing that, in its opinion, the
number of shares of Common Stock requested by the Investors to be
included in such registration is likely to affect materially and
adversely the success of the offering or the price that would be
received for any shares of Common Stock offered in such offering,
then, notwithstanding anything in Section 2(d)(i) to the
contrary, the Company shall be required to include in such
registration only the number of shares of Common Stock which the
Company is so advised can be sold in such offering, in the
following order: (A) first, the number of shares of Common
Stock proposed to be included in such registration for the account
of the Company and/or any shareholders of the Company (other than
the Investor) that have exercised demand registration rights, in
accordance with the priorities, if any, then existing among the
Company and/or such shareholders of the Company with registration
rights (other than the Investor), and (B) second, the shares
of Common Stock requested to be included in such registration by
all other shareholders of the Company who have piggyback
registration rights (including, without limitation, the Investor),
pro rata among such other shareholders (including, without
limitation, the Investor) on the basis of the number of shares of
Common Stock that each of them requested to be included in such
registration.
(iii)
In connection with any
offering involving an underwriting of shares, the Company shall not
be required under Section 2(d) hereof or otherwise to
include therein the Registrable Securities of any Investor unless such Investor accepts
and agrees to the terms of the underwriting, which shall be
reasonable and customary, as agreed upon between the Company and
the underwriters selected by the Company.
3.
Company Obligations . The Company will use reasonable
best 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 reasonable best efforts to cause such Registration Statement to
become effective and to remain continuously effective for a period
(the “Effectiveness 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) and shall advise the
Investor when such period has expired;
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(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 Investor 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;
(d)
furnish to the Investor and its 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 the Investor may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by the Investor that are covered by
the related Registration Statement;
(e)
use commercially reasonable efforts to (i) prevent the
issuance of any stop order or other suspension of effectiveness
and, (ii)&
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