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


 

















 


Registrable
Securities), covering the resale of the Registrable Securities.”


 


2.                                       The third sentence of Section 2(c)(i) of the Agreement is
hereby amended and restated in its entirety as follows:


 


“If (A) a
Registration Statement covering the Registrable Securities is not declared
effective by the SEC prior to the earliest 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 90th day after the
Filing Deadline, 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 any Allowed Delay (as defined below) or the inability of any Investor
to sell the Registrable Securities covered thereby due to market conditions,
then the Company will make payments to each Investor, as liquidated damages and
not as a penalty, in an amount equal to such Investor’s Liquidated Damages
Amount 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”).”


 


3.                                       Pursuant to Section 7(a) of the Agreement, the undersigned
hereby (i) consents to the failure by the Company to prepare and file with
the SEC, not later than September 30, 2008, a Registration Statement
covering the resale of the Registrable Securities, and (ii) waives, on
behalf of itself and each other Investor, any damages to which it or any other
Investor might be entitled pursuant to Section 2(a)(i) of the
Agreement or otherwise with regard to such failure.  This consent shall be effective for the
purposes set forth herein and shall not be deemed to be a consent to any waiver
of any other term of the Agreement, or otherwise prejudice any right or remedy
which the Investors may now have or may have in the future under or in
connection with the Agreement.


 


4.                                       Except as otherwise amended by this Amendment, the Agreement shall
continue in full force and effect.


 


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left blank.]


 


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IN WITNESS WHEREOF, the parties have executed this Amendment and Waiver
or caused their duly authorized officers to execute this Amendment and Waiver
as of the date first written above.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  	
   

  
	
   

  	
  WORLD HEART
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Jal S. Jassawalla

  
	
   

  	
  Name:
  Jal S. Jassawalla

  
	
   

  	
  Title:
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WORLD HEART
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Jal S. Jassawalla

  
	
   

  	
  Name:
  Jal S. Jassawalla

  
	
   

  	
  Title:
  President

  



 


 


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  INVESTORS:

  
	
   

  	
   

  
	
   

  	
  ABIOMED,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Michael R. Minogue

  
	
   

  	
  Name:
  Michael R. Minogue

  
	
   

  	
  Title: CEO,
  President and Chairman of the Board

  



 


 


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  INVESTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  SPECIAL
  SITUATIONS FUND III QP, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ Austin W. Marxe

  
	
   

  	
  Name:
  Austin W. Marxe

  
	
   

  	
  Title:
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  SPECIAL
  SITUATIONS CAYMAN FUND, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Austin W. Marxe

  
	
   

  	
  Name:
  Austin W. Marxe

  
	
   

  	
  Title:
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  SPECIAL
  SITUATIONS PRIVATE EQUITY

  FUND, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Austin W. Marxe

  
	
   

  	
  Name:
  Austin W. Marxe

  
	
   

  	
  Title:
  General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SPECIAL
  SITUATIONS LIFE SCIENCES FUND,

  L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Austin W. Marxe

  
	
   

  	
  Name:
  Austin W. Marxe

  
	
   

  	
  Title:
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
          /s/ Austin W. Marxe

  
	
   

  	
   

  	
          Austin W. Marxe

  



 


 


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  INVESTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  VENROCK
  PARTNERS V, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  by its
  General Partner,

  
	
   

  	
  Venrock
  Partners Management V, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anders Hove

  
	
   

  	
  Name:
  Anders Hove

  
	
   

  	
  Title:
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
  VENROCK
  ASSOCIATES V, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  by its
  General Partner,

  
	
   

  	
  Venrock
  Management V LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ Anders Hove

  
	
   

  	
  Name:
  Anders Hove

  
	
   

  	
  Title:
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  VENROCK ENTRPRENEURS FUND V, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  by its
  General Partner,

  
	
   

  	
  VEF
  Management V LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ Anders Hove

  
	
   

  	
  Name:
  Anders Hove

  
	
   

  	
  Title:
  Member

  



 


 


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  INVESTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  NEW
  LEAF VENTURES II, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
      New Leaf Venture Associates II, L.P.

  
	
   

  	
   

  	
      Its:    General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
      New Leaf Venture Management II, L.L.C.

  
	
   

  	
   

  	
      Its:    General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ Jeani Delgardelle

  
	
   

  	
  Name:
  Jeani Delagardelle

  
	
   

  	
  Title:
  Managing Director

  



 


 


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AMENDMENT AND WAIVER]