EXHIBIT 4.1


 


REGISTRATION RIGHTS AGREEMENT


 


This Registration Rights
Agreement (the “Agreement”) is made and entered into as of July 29, 2005 by and
among World Heart Corporation, a corporation incorporated under the laws of the
Province of Ontario, Canada (the “Company”), and Maverick Venture Management,
LLC, the Investor named in the Purchase Agreement by and between the Company
and Maverick Venture Management, LLC dated as of January 31, 2005 (the
“Purchase Agreement”) and MedQuest Products, Inc., a corporation incorporated
under the laws of the State of Utah, the Vendor named in the Asset Purchase
Agreement between the Company and MedQuest Products, Inc. made as of January
31, 2005 (the “Asset Purchase 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.


 


“Business Day” means
a day, other than a Saturday or Sunday, on which banks in Ottawa, Ontario, New
York City, New York and Salt Lake City, Utah 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.


 


“Investors” shall
mean Maverick Venture Management, LLC and MedQuest Products, Inc. and any
Affiliate of either of them.


 


“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.


 


“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 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 Investors 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.


 


“SEC” means the U.S.
Securities and Exchange Commission.


 


“Shares” means the
shares of Common Stock issued pursuant to the Purchase Agreement and the Asset
Purchase Agreement.


 


“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)            No later than one hundred and twenty
(120) days, following the closing of the purchase of the securities
contemplated by the Purchase Agreement (the “Filing Deadline”), the Company
shall prepare and file with the SEC one Registration Statement on Form S-2 (or,
if Form S-2 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 number of Shares and other Common Stock as
determined by the Company in it sole discretion.  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 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 Investors and their counsel prior to its
filing or other submission.


 


(b)          Expenses.  The Company will pay all expenses associated
with each registration, including filing and printing fees, its counsel and
accounting fees and expenses, costs associated with clearing the Registrable
Securities for sale under applicable state securities laws, listing fees, 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.


 


The
Company shall use commercially reasonable efforts to have the Registration
Statement declared effective as soon as practicable.  The Company shall notify the Investors 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 Investors with a copy of any related
Prospectus to be used in connection with the sale or other disposition of the
securities covered thereby.


 


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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; and


 


(c)           furnish to the Investors 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 four
Business Days after the filing date, receipt date or sending date, as the case
may be) one 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 Investors may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by the Investors
that are covered by the related Registration Statement.


 


4.             Due Diligence Review; Information.  The Company shall make available, during
normal business hours, for inspection and review by the Investors, advisors to
and representatives of the Investors (who may or may not be affiliated with the
Investors and who are reasonably acceptable to the Company), any underwriter
participating in any disposition of shares of Common Stock on behalf of the
Investors 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 Investors 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 Investors 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.


 


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The Company shall not disclose material nonpublic
information to the Investors, or to advisors to or representatives of the
Investors, unless prior to disclosure of such information the Company
identifies such information as being material nonpublic information and
provides the Investors and such advisors and representatives with the
opportunity to accept or refuse to accept such material nonpublic information
for review and any Investor and such advisers and representatives wishing to obtain
such information, enter into an appropriate confidentiality agreement with the
Company with respect thereto.


 


5.             Obligations of the Investors.


 


(a)           Each Investor 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 Investor of the information the Company requires from such
Investor.  An Investor shall provide such
information to the Company at least two (2) Business Days prior to the first
anticipated filing date of such Registration Statement.


 


(b)          Each Investor, 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.


 


6.             Indemnification.


 


(a)           Indemnification by the Company.  The Company will indemnify and hold harmless
each Investor and its officers, directors, members, employees and agents,
successors and assigns, and each other person, if any, who controls such
Investor 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 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
an Investor’s behalf (the undertaking of any underwriter chosen by the Company
being attributed to the Company) and will reimburse such Investor, 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


 


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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 Investor or any such
controlling person in writing specifically for use in such Registration
Statement or Prospectus.


 


(b)          Indemnification by the Investors.  In connection with any registration pursuant
to the terms of this Agreement, each Investor 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 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 1933 Act) 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 Investor to the Company specifically for inclusion
in such Registration Statement or Prospectus or amendment or supplement
thereto.  In no event shall the liability
of an Investor be greater in amount than the dollar amount of the proceeds (net
of all expense paid by such Investor 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 Investor 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
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


 


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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 Investors.  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 Investors.


 


(b)          Notices.  Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given as hereinafter described (i) if given by personal
delivery, then such notice shall be deemed given upon such delivery, (ii) if
given by telecopier, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by mail, then such notice
shall be deemed given upon the earlier of (A) receipt of such notice by the recipient
or (B) three days after such notice is deposited in first class mail, postage
prepaid, and (iv) if given by an internationally recognized overnight air
courier, then such notice shall be deemed given one day after delivery to such
carrier.  All notices shall be addressed
to the party to be notified at the address as follows, or at such other address
as such party may designate by ten days’ advance written notice to the other
party:


 


If
to the Company:


 


World
Heart Corporation


7799
Pardee Lane


Oakland,
California 94621


Attention:  Chief Financial Officer


Fax:  (510) 563-4800


 


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With
a copy to:


 


McCarthy
Tétrault LLP


Suite
1400, 40 Elgin Street


Ottawa,
Ontario


K1P
5K6


Attention:  Virginia K. Schweitzer


Fax:  (613) 563-9386


 


If
to the Investor:


 


Maverick
Venture Management, LLC

14950 Gypsy Hill Road


Saratoga,
California 95070


 


Attention:  Kevin R. Compton, Manager

Fax: (650) 233-0300


 


and


 


MedQuest
Products, Inc.

4570 Wiley Post Way, Suite 120

Salt Lake City, Utah 84116


 


Attention:  President

Fax: (801) 355-7622


 


and
with a copy to:


 


Holland
& Hart LLP


60
East South Temple, Suite 2000

Salt Lake City, Utah 84111


 


Attention:
Gregory E. Lindley


Fax:
(801) 364-9124


 


(c)           Assignments and Transfers by
Investors.  The provisions of this
Agreement shall be binding upon and inure to the benefit of the Investors and
their respective successors and assigns. 
No Investor may transfer or assign its rights hereunder in connection
with the transfer of Registrable Securities without the prior written consent
of the Company.


 


(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 Investors, 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 Investors, after notice duly given by
the Company to each Investor.


 


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(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.


 


(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


 


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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.


 


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:

  	
  /s/ Jal S. Jassawalla

  	
   

  
	
   

  	
  Name: Jal S. Jassawalla

  
	
   

  	
  Title: President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  The
  Investors:

  	
  MAVERICK
  VENTURE MANAGEMENT, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin Compton

  	
   

  
	
   

  	
  Name: Kevin Compton

  
	
   

  	
  Title: Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MEDQUEST
  PRODUCTS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Barbara Madsen

  	
   

  
	
   

  	
  Name:
  Barbara Madsen

  
	
   

  	
  Title:
  Vice President and Chief Financial Officer

  
							



 


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