Exhibit
4.1


 


CERTIFICATE OF INCORPORATION



OF



WORLD HEART CORPORATION


 


The undersigned, a natural person (the “Sole
Incorporator”), for the purpose of organizing a corporation to conduct the
business and promote the purposes hereinafter stated, under the provisions and
subject to the requirements of the laws of the State of Delaware hereby
certifies that:


 


I.


 


The name of this corporation is World Heart
Corporation.


 


II.


 


The address of the registered office of the
corporation in the State of Delaware is 160 Greentree Drive, Suite 101,
City of Dover, County of Kent, and the name of the registered agent of the
corporation in the State of Delaware at such address is National Registered
Agents Inc.


 


III.


 


The purpose of this corporation is to engage in any lawful
act or activity for which a corporation may be organized under the Delaware
General Corporation Law (“DGCL”).


 


IV.


 


A.                                    This corporation is authorized to issue
two classes of stock to be designated, respectively, “Common Stock” and “Preferred
Stock.”  The total number of shares which
the corporation is authorized to issue is fifty-one million (51,000,000)
shares.  Fifty million (50,000,000)
shares shall be Common Stock, each having a par value of one-tenth of one cent
($.001).  One million (1,000,000) shares
shall be Preferred Stock, each having a par value of one cent ($.01).


 


B.                                    The Preferred Stock may be issued from
time to time in one or more series.  The
Board of Directors is hereby expressly authorized to provide for the issue of
all or any of the  shares of the Preferred Stock in
one or more series, and to fix the number of shares and to determine or alter
for each such series, such voting powers, full or limited, or no voting powers,
and such designation, preferences, and relative, participating, optional, or
other rights and such qualifications, limitations, or restrictions thereof, as
shall be stated and expressed in the resolution or resolutions adopted by the
Board of Directors providing for the issuance of such shares and as may be
permitted by the DGCL.  The Board of
Directors is also expressly authorized to increase or decrease the number of
shares of any series subsequent to the issuance of shares of that series, but
not below the number of shares of such series then outstanding.  In case the number of shares of any series
shall be decreased in accordance with the foregoing 


 


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sentence, the shares
constituting such decrease shall resume the status that they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.  The number of authorized shares
of Preferred Stock may be increased or decreased (but not below the number of
shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the voting power of the stock of the corporation entitled to vote
thereon, without a separate vote of the holders of the Preferred Stock, or of
any series thereof, unless a vote of any such holders is required pursuant to
the terms of any certificate of designation filed with respect to any series of
Preferred Stock.


 


V.


 


For the management of the business and for the conduct
of the affairs of the corporation, and in further definition, limitation and
regulation of the powers of the corporation, of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided
that:


 


A.


 


1.                                      The management of the business and the
conduct of the affairs of the corporation shall be vested in its Board of
Directors.  The number of directors which
shall constitute the Board of Directors shall be fixed exclusively by
resolutions adopted by a majority of the authorized number of directors
constituting the Board of Directors.


 


2.                                      Subject to the rights of the holders of
any series of Preferred Stock to elect additional directors under specified
circumstances, directors shall be elected at each annual meeting of
stockholders for a term of one year. 
Each director shall serve until his successor is duly elected and
qualified or until his death, resignation or removal.  No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.


 


3.                                      The Board of Directors or any individual
director may be removed from office at any time (a) with cause by the
affirmative vote of the holders of a majority of the voting power of all the
then-outstanding shares of capital stock of the corporation, entitled to vote
at an election of directors or (b) without cause by the affirmative vote
of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the
voting power of all the then-outstanding shares of the capital stock of the
corporation entitled to vote generally at an election of directors.


 


4.                                      Subject to the rights of the holders of
any series of Preferred Stock, any vacancies on the Board of Directors
resulting from death, resignation, disqualification, removal or other causes
and any newly created directorships resulting from any increase in the number
of directors, shall, unless the Board of Directors determines by resolution
that any such vacancies or newly created directorships shall be filled by the
stockholders, except as otherwise provided by law, be filled only by the
affirmative vote of a majority of the directors then in office, even though
less than a quorum of the Board of Directors, and not by the stockholders.  Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
director for which the vacancy was created or occurred and until such director’s
successor shall have been elected and qualified.


 


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5.                                      The names and the mailing addresses of
the directors of the Corporation, each of whom shall serve until the first annual
meeting of shareholders and until his or her successor is elected and
qualified, are as follows:


 


	
  Name

  	
   

  	
  MAILING ADDRESS

  
	
   

  	
   

  	
   

  
	
  Jeani
  Delagardelle

  	
   

  	
  c/o World Heart
  Corporation

  
	
   

  	
   

  	
  4750 Wiley Post
  Way

  
	
   

  	
   

  	
  Suite 120

  
	
   

  	
   

  	
  Salt Lake City,
  UT 84116

  
	
   

  	
   

  	
   

  
	
  Michael Sumner
  Estes

  	
   

  	
  c/o World Heart
  Corporation

  
	
   

  	
   

  	
  4750 Wiley Post
  Way

  
	
   

  	
   

  	
  Suite 120

  
	
   

  	
   

  	
  Salt Lake City,
  UT 84116

  
	
   

  	
   

  	
   

  
	
  William C.
  Garriock

  	
   

  	
  c/o World Heart
  Corporation

  
	
   

  	
   

  	
  4750 Wiley Post
  Way

  
	
   

  	
   

  	
  Suite 120

  
	
   

  	
   

  	
  Salt Lake City,
  UT 84116

  
	
   

  	
   

  	
   

  
	
  Gary W. Goertz

  	
   

  	
  c/o World Heart
  Corporation

  
	
   

  	
   

  	
  4750 Wiley Post
  Way

  
	
   

  	
   

  	
  Suite 120

  
	
   

  	
   

  	
  Salt Lake City,
  UT 84116

  
	
   

  	
   

  	
   

  
	
  Anders D. Hove

  	
   

  	
  c/o World Heart
  Corporation

  
	
   

  	
   

  	
  4750 Wiley Post
  Way

  
	
   

  	
   

  	
  Suite 120

  
	
   

  	
   

  	
  Salt Lake City,
  UT 84116

  
	
   

  	
   

  	
   

  
	
  John Alexander
  Martin

  	
   

  	
  c/o World Heart
  Corporation

  

  4750 Wiley Post
  Way

  
	
   

  	
   

  	
  Suite 120

  
	
   

  	
   

  	
  Salt Lake City,
  UT 84116

  
	
   

  	
   

  	
   

  
	
  Austin W. Marxe

  	
   

  	
  c/o World Heart
  Corporation

  
	
   

  	
   

  	
  4750 Wiley Post
  Way

  
	
   

  	
   

  	
  Suite 120

  
	
   

  	
   

  	
  Salt Lake City,
  UT 84116

  



 


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B.


 


1.                                      The Board of Directors is expressly
empowered to adopt, amend or repeal the Bylaws of the corporation. Any
adoption, amendment or repeal of the Bylaws of the corporation by the Board of
Directors shall require the approval of a majority of the authorized number of
directors. The stockholders shall also have power to adopt, amend or repeal the
Bylaws of the corporation; provided, however, that, in addition to any vote of
the holders of any class or series of stock of the corporation required by law
or by this Certificate of Incorporation, such action by stockholders shall
require the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66 2/3%) of the voting power of all of the then-outstanding
shares of the capital stock of the corporation entitled to vote generally in
the election of directors, voting together as a single class.


 


2.                                      The directors of the corporation need not
be elected by written ballot unless the Bylaws so provide.


 


3.                                      No action shall be taken by the
stockholders of the corporation except at an annual or special meeting of
stockholders called in accordance with the Bylaws or by written consent or
electronic transmission of stockholders in accordance with the Bylaws.


 


4.                                      Advance notice of stockholder nominations
for the election of directors and of business to be brought by stockholders
before any meeting of the stockholders of the corporation shall be given in the
manner provided in the Bylaws of the corporation.


 


VI.


 


A.                                    The liability of the directors for
monetary damages shall be eliminated to the fullest extent under applicable
law.  If the DGCL is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the corporation shall be
eliminated to the fullest extent permitted by the DGCL, as so amended.


 


B.                                    Any repeal or modification of this Article VI
shall be prospective and shall not affect the rights under this Article VI
in effect at the time of the alleged occurrence of any act or omission to act
giving rise to liability or indemnification.


 


VII.


 


A.                                    The corporation reserves the right to
amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, except as
provided in paragraph B. of this Article VII, and all rights conferred
upon the stockholders herein are granted subject to this reservation.


 


B.                                    Notwithstanding any other provisions of
this Certificate of Incorporation or any provision of law which might otherwise
permit a lesser vote or no vote, but in addition to any affirmative vote of the
holders of any particular class or series of the corporation required by law or
by this Certificate of Incorporation or any certificate of designation filed
with respect to a series of Preferred Stock, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting
power of all of the then-outstanding shares of capital stock of the 


 


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corporation entitled to
vote generally in the election of directors, voting together as a single class,
shall be required to alter, amend or repeal Articles V, VI, and VII.


 


VIII.


 


The name and the mailing address of the Sole
Incorporator is as follows:


 


	
  Name

  	
   

  	
  MAILING
  ADDRESS

  
	
   

  	
   

  	
   

  
	
  John Alexander
  Martin

  	
   

  	
  c/o World Heart
  Corporation

  
	
   

  	
   

  	
  4750 Wiley Post
  Way

  
	
   

  	
   

  	
  Suite 120

  
	
   

  	
   

  	
  Salt Lake City,
  UT 84116

  



 


IX.


 


This Certificate shall be effective as of January 1,
2010 at 12:05 a.m. EST.


 


IN WITNESS WHEREOF, this Certificate has been subscribed this 29th day of
December, 2009 by the undersigned who affirms that the statements made herein
are true and correct.


 


 


	
   

  	
  /s/ John
  Alexander Martin

  
	
   

  	
  John
  Alexander Martin

  
	
   

  	
  Sole
  Incorporator

  



 


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