Exhibit 4.4
Amendment and Waiver to
Registration Rights Agreement
This Amendment and Waiver to
Registration Rights Agreement is entered into as of
November 3, 2008 (this “Amendment”), by and among
World Heart Corporation, a Canadian corporation (the
“Company”), its wholly-owned subsidiary World Heart
Inc. (“WHI”), and the undersigned Investors.
Capitalized terms used herein and not otherwise defined have the
meanings given them in the Agreement (as defined below).
WHEREAS, the Company and certain
Investors entered into that certain Registration Rights Agreement
dated as of July 31, 2008 (the
“Agreement”);
WHEREAS, Section 7(a) of
the Agreement provides that the Agreement may be amended, and the
Company may omit to perform any act therein required to be
performed by it, upon with the written consent of the Company and
the Required Investors;
WHEREAS,
Section 2(a)(i) of the Agreement provides that no later
than the earlier of (i) thirty (30) days after the
Shareholders Meeting and (ii) September 30, 2008 (the
earlier of such dates, the “Filing Deadline”) the
Company shall prepare and file with the SEC one Registration
Statement covering the resale of the Registrable
Securities;
WHEREAS,
Section 2(a)(i) of the Agreement provides that if a
Registration Statement covering the Registrable Securities is not
filed with the SEC on or prior to the Filing Deadline, the Company
will pay certain penalties to each Investor; and
WHEREAS, the undersigned Investors
comprising the Required Investors desire to amend the Agreement to
extend the Filing Deadline, to make certain other amendments as
provided herein, and to waive certain obligations of the Company to
pay damages to the Investors pursuant to
Section 2(a)(i) of the Registration Rights Agreement
solely as provided herein.
NOW, THEREFORE,
for good and valuable consideration
mutually given, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
The first sentence of
Section 2(a)(i) of the Agreement is hereby amended and
restated in its entirety as follows:
“Promptly following the
closing of the purchase and sale of the securities contemplated by
the Recapitalization Agreement (the “Closing Date”) but
no later than thirty (30) days after the Shareholders Meeting (the
“Filing Deadline”), the Company shall prepare and file
with the SEC one Registration Statement on Form S-3 (or, if
the Company is not then eligible to use Form S-3 to register
the resale of the Registrable Securities, on such form of
registration statement as is then available to effect a
registration for resale of the
