Exhibit 10.33


 


INDEMNIFICATION
AGREEMENT


 


This Agreement is made
and entered into as of
                         
            ,
                  
(the “Agreement”), by and between World Heart Corporation, a corporation
continued under the laws of Canada (the “Company”, which term shall include any
one or more of its subsidiaries where appropriate), and
                          
               
             (“Indemnitee”).  Certain capitalized terms are used in this
Agreement as specifically defined in Section 7.


 


WHEREAS,
the Company and Indemnitee recognize the substantial increase in corporate
litigation in general, subjecting directors and executive officers to expensive
litigation risks;


 


WHEREAS,
the Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve as directors and executive officers
of the Company and to indemnify its directors and executive officers so as to
provide them with the maximum  protection  permitted under applicable law and the Company’s Articles
of Continuance and By-Laws, each as amended; and


 


WHEREAS,
in view of such considerations, the Company desires to provide, independent
from the indemnification to which Indemnitee is otherwise entitled by law and
under the Company’s Articles of Continuance and By-Laws, each as amended,
indemnification to Indemnitee and advances of expenses, all as set forth in
this Agreement.


 


NOW, THEREFORE,
to induce Indemnitee to serve the Company and in consideration of these
premises and the mutual agreements set forth in this Agreement, as well as
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and Indemnitee hereby agree as follows:


 


1.                                       Services
by Indemnitee.  Indemnitee agrees to
serve or continue to serve as a director or executive officer of the Company
for so long as Indemnitee is duly elected or appointed or until Indemnitee’s
written resignation; provided, however, that nothing contained in this
Agreement is intended as an employment agreement between Indemnitee and the
Company or any of subsidiaries or to create any right to continued employment
of Indemnitee with the Company or any of its subsidiaries in any capacity.


 


2.                                       Indemnification
and Advances.


 


2.1                                 The
Company shall advance all Expenses actually and reasonably incurred by or on
behalf of Indemnitee in connection with any Proceeding within fifteen business
days after the receipt by the Company of a written request therefor,
accompanied or preceded by reasonably detailed evidence of such Expenses.  Such written request shall include an
undertaking, substantially in the form attached hereto as Exhibit A,
by or on behalf of Indemnitee to repay all Expenses advanced to the extent
Indemnitee shall be finally adjudicated, or determined pursuant to Section 3.1,
3.2 or 3.3, to be not entitled to indemnification therefor.  The undertaking as described above shall be
unsecured, bear no interest and be accepted by the Company without reference to
Indemnitee’s financial ability to repay any such advances.  Advances shall include any and all Expenses
actually and reasonably incurred by Indemnitee pursuing an action to enforce
Indemnitee’s


 

















 


right to indemnification
under this Agreement, or otherwise, including Expenses incurred preparing and
forwarding statements to the Company to support the advances claimed. Repayment
shall not be required until after it is ultimately determined by a court of
competent jurisdiction in a final judgment, not subject to appeal, that
Indemnitee is not entitled to be indemnified by the Company.


 


2.2                                 Except
as specifically provided in Sections 3.1, 3.2 and 3.3, within 60 calendar days
after receipt of a request for indemnification from Indemnitee the Company
shall indemnify Indemnitee to the fullest extent permitted by law against all
Expenses, judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection
with any Proceeding or any claim, issue or matter therein.  A request for indemnification must be
accompanied by reasonable evidence of the basis of the amount for which
indemnification is requested, and must indicate a choice of Independent
Counsel, if any, to make any determination pursuant to Section 3.3.


 


2.3                                 Notwithstanding
any other provision of this Agreement, Indemnitee shall be indemnified against
all Expenses actually and reasonably incurred by Indemnitee in connection with
any Proceeding (or any claim, issue or matter relating thereto) which was
adjudicated or determined by a court of competent jurisdiction, on the merits
or otherwise, in Indemnitee’s favor or which was terminated by dismissal or
withdrawal, with or without prejudice. 
Without limiting the generality of the foregoing, if any Proceeding is
disposed of, on the merits, by settlement (with or without court approval) or
otherwise (including a disposition without prejudice), without (i) the
disposition being adverse to Indemnitee, (ii) an adjudication that
Indemnitee was liable to the Company, (iii) a plea of guilty by
Indemnitee, (iv) an adjudication that Indemnitee did not act in good faith
and in a manner Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company, or (v) with respect to any criminal action
or proceeding, an adjudication that Indemnitee had reasonable cause to believe
Indemnitee’s conduct was unlawful, then the Proceeding shall be considered for
the purpose of this Agreement to have been resolved in Indemnitee’s favor.  For purposes of this Agreement, the termination
of any Proceeding by settlement or upon a plea of nolo contendere,
or its equivalent, shall not, of itself, create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief
or that a court has determined that indemnification is not permitted by
applicable law.


 


2.4                                 If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of the Expenses, judgments, penalties,
fines or amounts paid in settlement actually and reasonably incurred by him or
on his behalf in connection with any Proceeding or any claim, issue or matter
therein, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion of such Expenses, judgments,
penalties, fines or amounts paid in settlement to which the Company reasonably
believes the Indemnitee is entitled.


 


2.5                                 Indemnitee
must notify the Company in writing as soon as practicable of any Proceeding for
which indemnity will or could be sought by him and provide the Company with a
copy of any summons, citation, subpoena, information or other document relating
to such Proceeding with which Indemnitee is served. In the event the Company
shall be obligated to pay Expenses of Indemnitee in connection with any
Proceeding, the Company shall have the right in its sole discretion to assume
the defense of such Proceeding, or to participate to the extent permissible


 


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in such Proceeding, with
counsel approved by Indemnitee, which approval shall not be unreasonably
withheld or delayed, upon the delivery to Indemnitee of written notice of its
election to do so.  Notwithstanding the
foregoing, the Company shall not be permitted to settle any Proceeding on
behalf of Indemnitee in any manner which would impose any unindemnified
liability or penalty on Indemnitee or require any acknowledgment of wrongdoing
on the part of Indemnitee without Indemnitee’s written consent. The Company
shall not be required to indemnify Indemnitee for any amounts paid in
settlement of any Proceeding effected without its written consent (which
consent shall not be unreasonably withheld or delayed; provided, however, that
the Company may in any event decline to consent to (or to otherwise admit or
agree to any liability for indemnification hereunder in respect of) any
proposed settlement if the Company is also a party in such proceeding and
determines in good faith that such settlement is not in the best interests of
the Company and its shareholders.). 
After delivery of such notice, approval of such counsel by Indemnitee
and the retention of such counsel by the Company, the Company will not be
liable to Indemnitee under this Agreement for any other fees of counsel subsequently
incurred by Indemnitee with respect to the same Proceeding, provided that (i) Indemnitee
shall have the right to employ his own counsel in any such Proceeding at
Indemnitee’s own expense; and (ii) if (A) the employment of separate
counsel by Indemnitee has been previously authorized in writing by the Company,
or (B) Indemnitee shall have reasonably concluded based on the advice of
legal counsel that there is an actual conflict of interest between the Company
and Indemnitee in the conduct of any such defense, or (C) the Company
shall not, in fact, have employed counsel to assume the defense of such
Proceeding, then the fees of Indemnitee’s counsel shall be at the expense of
the Company.  The Company shall not be
entitled, without the consent of Indemnitee (which consent shall not be
unreasonably withheld or delayed), to assume the defense of any claim brought
by or in the right of the Company or as to which counsel for Indemnitee shall
have reasonably made the conclusion provided for in clause (ii)(B) above.


 


2.6                                 Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any Proceeding or in
defense of any claim, issue or matter therein, including the dismissal of any
action without prejudice, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred in connection with the investigation,
defense or appeal of such Proceeding.


 


3.                                       Exceptions.


 


3.1                                 No
indemnification shall be provided with respect to the following:  (a) remuneration paid to Indemnitee if
it is determined by final judgment or other final adjudication that such
remuneration was in violation of law; (b) any Proceeding to the extent
that Indemnitee has been finally adjudicated (i) not to have acted
honestly or in good faith and in the reasonable belief that Indemnitee’s action
or inaction was in the best interests of the Company (or, in the case of
service with respect to an employee benefit plan, in the best interests of the
participants or beneficiaries of such employee benefit plan) or (ii) in
the case of a criminal or administrative action or proceeding that is enforced
by a monetary penalty, not to have had reasonable grounds for believing that
the Indemnitee’s conduct was lawful; (c) any of Indemnitee’s Expenses or
liabilities to the extent that such Expenses or liabilities have been actually
paid by an insurance carrier under a policy of insurance; (d) the payment
of profits inuring to and recoverable by the Company pursuant to Section 16(b) of
the Securities and Exchange Act of 1934, as amended, or any similar successor
statute or other provisions of any Canadian or U.S. federal, state or local
statute or rules and regulations


 


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thereunder, and any
Expenses incurred with respect thereto; (e) any Proceeding initiated or
brought voluntarily by Indemnitee and not by way of defense, counterclaim or
crossclaim, except (i) with respect to a Proceeding brought to establish
or enforce a right to indemnification under this Agreement (unless otherwise
prohibited by this Agreement) or under any other agreement or applicable law,
or (ii) in specific cases where the Board of Directors has approved the
initiation or bringing of such Proceeding; (f) any Proceeding in which
Indemnitee has been finally adjudicated to have committed fraud; or (g) any
Proceeding in which it has been finally adjudicated that Indemnitee may not be
relieved of liability under applicable law or public policy for Indemnitee’s
acts, errors, omissions or transactions.


 


3.2                                 If
a Change of Control has not occurred since the date hereof, no indemnification
shall be provided under this Agreement to the extent that, within 60 calendar
days of the receipt by the Company of a request for indemnification, Indemnitee
has been determined (after investigation) by:


 


(a) the Board of
Directors of the Company by majority vote of a quorum of Disinterested
Directors; or


 


(b) if such a
quorum is not obtainable, or if directed by majority vote of a quorum of
Disinterested Directors, Independent Counsel (selected by majority vote of the
Disinterested Directors or, if none, by majority vote of the Board of
Directors) in a written opinion,


 


not
to be entitled to such indemnification pursuant to any of the exceptions set
forth in Section 3.1 above.


 


3.3                                 If
a Change in Control has occurred since the date hereof, no indemnification
shall be provided under this Agreement to the extent that, within 60 calendar
days of the receipt by the Company of a request for indemnification, Indemnitee
has been determined (after investigation) by:


 


(a) the Independent
Counsel specified by Indemnitee in the request for indemnification and approved
by the Company (such approval not to be unreasonably withheld); or


 


(b) if the
Indemnitee makes no such specification, by a person, persons or entity who
would be entitled to make such a determination pursuant to Section 3.2 if
a Change in Control had not occurred,


 


not to be entitled
to such indemnification pursuant to any of the exceptions set forth in Section 3.1
above.  A person, persons or entity
making a determination pursuant to this Section 3.3 shall presume that
Indemnitee acted so as to be entitled to indemnification, and the Company shall
have the burden of proof in overcoming that presumption.


 


3.4                                 Indemnitee
shall cooperate with any person, persons or entity making an investigation
pursuant to Sections 3.2 or 3.3 to the extent reasonably requested.  Any costs or expenses (including attorney’s
fees and disbursements) incurred by Indemnitee in so cooperating shall be borne
by the Company (irrespective of the determination as to Indemnitee’s
entitlement to


 


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indemnification), and the
Company hereby agrees to indemnify and agrees to hold Indemnitee harmless
therefrom.


 


3.5                                 For
purposes of any determination of good faith, Indemnitee shall be deemed to have
acted in good faith if Indemnitee’s action is based on the records or books of
account of the Company or relevant Subsidiary, including financial statements,
or on information supplied to Indemnitee by the officers of the Company or
relevant Subsidiary in the course of their duties, or on the advice of legal
counsel for the Company or relevant Subsidiary, by an independent certified
public accountant or by an appraiser or other expert selected with reasonable
care by the Company or relevant Subsidiary. 
The knowledge and actions, or failure to act, of any other director, officer,
agent or employee of the Company or any of its Subsidiaries shall not be
imputed to Indemnitee for purposes of determining the right to indemnification
under this Agreement.  The provisions of
this Section 3.5 shall not be deemed to be exclusive or to limit in any
way the other circumstance in which the Indemnitee may be deemed to have meet
the applicable standard of conduct set forth in this Agreement.


 


3.6                                 Any
provision herein to the contrary notwithstanding, the Company shall not be
obligated pursuant to the terms of this Agreement to indemnify Indemnitee or
otherwise act in violation of any undertaking appearing in and required by the rules and
regulations promulgated under the Securities Act of 1933, as amended (the “Act”),
or in any registration statement filed with the U.S. Securities and Exchange
Commission (the “SEC”) under the Act. 
Indemnitee acknowledges that paragraph (h) of Item 512 of
Regulation S-K currently generally requires the Company to undertake in
connection with any registration statement filed under the Act to submit the
issue of the enforceability of Indemnitee’s rights under this Agreement in
connection with any liability under the Act on public policy grounds to a court
of appropriate jurisdiction and to be governed by any final adjudication of
such issue.  Indemnitee specifically
agrees that any such undertaking shall supersede the provisions of this
Agreement and to be bound by any such undertaking.


 


4.                                       Remedies
of Indemnitee.


 


4.1                                 In
the event that (i) a determination is made that Indemnitee is not entitled
to indemnification under this Agreement, (ii) a required advancement of
Expenses is not timely made, or (iii) payment of any required
indemnification is not timely made as prescribed in Section 2.2,
Indemnitee shall be entitled to an adjudication in an appropriate court of the
Province of Ontario of Indemnitee’s entitlement to such indemnification or
advancement of Expenses.  Alternatively,
Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be
conducted in Salt Lake City, Utah by a single arbitrator pursuant to the
commercial rules of the American Arbitration Association, and judgment
upon any arbitration award may be entered in an appropriate court of the
Province of Ontario.  Indemnitee shall
commence a proceeding seeking such an adjudication or an award in arbitration
within 180 calendar days following the date on which Indemnitee first has the
right to commence such proceeding.  The
Company shall not oppose Indemnitee’s right to seek any such adjudication or
award in arbitration.


 


4.2                                 In
the event that a determination shall have been made pursuant to this Agreement
that Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration


 


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pursuant to Section 4.1
shall be conducted in all respects as a de novo trial, or
arbitration, on the merits and Indemnitee shall not be prejudiced by reason of
such adverse determination.  In any such
judicial proceeding or arbitration the Company shall have the burden of proving
that Indemnitee is not entitled to indemnification or advancement of Expenses,
as the case may be, notwithstanding such adverse determination.


 


4.3                                 The
Company shall be precluded from asserting in any judicial proceeding or
arbitration pursuant to Section 4.1 that the procedures and presumptions
of this Agreement are not valid, binding or enforceable and shall stipulate in
any such court or before any such arbitrator that the Company is bound by all
of the provisions of this Agreement.


 


4.4                                 In
the event that Indemnitee seeks a judicial adjudication of or an award in
arbitration pursuant to Section 4.1 to enforce Indemnitee’s rights under,
or to recover damages for breach of, this Agreement, Indemnitee shall be
entitled to recover from the Company, and shall be indemnified by the Company
against, all Expenses actually and reasonably incurred by Indemnitee in such
judicial adjudication or arbitration, if 
Indemnitee prevails therein or if such recovery is ordered by the court
or the arbitrator.  If it shall be
determined in such judicial adjudication that Indemnitee is entitled to receive
part but not all of the indemnification or advancement of Expenses sought, the
Expenses incurred by Indemnitee in connection with such judicial adjudication
or arbitration shall be appropriately pro-rated.


 


5.                                       Security.  To the extent requested by the Indemnitee and
approved by the Company’s Board of Directors in its sole discretion, the
Company may at any time and from time to time provide security to the
Indemnitee for the Company’s obligations hereunder through an irrevocable bank
letter of credit, funded trust or other collateral.  Any such security, once provided to the
Indemnitee, may not be revoked or released without the prior, written consent
of Indemnitee.


 


6.                                       Insurance.  To the extent that the Company maintains an
insurance policy or policies providing liability insurance for directors or
executive officers of the Company (or fiduciaries of any other enterprise),
Indemnitee shall be covered by such policy or policies in accordance with its
or their terms to the maximum extent of the coverage available for any other
director or executive officer (or fiduciary) under such policy or
policies.  The Company shall not be
liable under this Agreement to make any payment of amounts otherwise
indemnifiable hereunder if and to the extent Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement, the
Company’s Articles of Continuance or By-Laws, each as amended, or
otherwise.  If the Company has liability
insurance for directors or executive officers of the Company in effect at the
time of the receipt by the Company from Indemnitee of a notice of a Proceeding,
the Company shall cause timely notice of the Proceeding to be given to the
Company’s insurer or insurers in accordance with the procedures set forth in
the respective applicable insurance policies.


 


7.                                       Definitions.


 


7.1                                 “Change
in Control” means an occurrence, after the date of this Agreement, of a change
in control of the Company of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A (or in response to
any similar item on any similar schedule or form) promulgated under the
Securities Exchange Act of 1934 (the “Act”), whether or


 


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not the Company is then
subject to such reporting requirement; provided, however, that, without
limitation, such a Change in Control also shall be deemed to have occurred
if:  (a) any “Person” (as such term
is used in Section 13(d) of the Act), other than a trustee or other
fiduciary holding Company securities under an employee benefit plan of the
Company acting in such capacity or a corporation owned directly or indirectly
by the shareholders of the Company in substantially the same proportions as
their ownership of stock of the Company, is or becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Act), directly or indirectly, of
securities of the Company representing 20% or more of the combined voting power
of the Company’s then outstanding securities without the prior approval of at
least two thirds of the members of the Board of Directors in office immediately
prior to such person attaining such percentage interest; (b) the Company
is a party to a merger, consolidation, sale of assets or other reorganization,
or a proxy contest, as a consequence of which members of the Board of Directors
in office immediately prior to such transaction or event constitute less than a
majority of the Board of Directors thereafter; or (c) during any period of
two consecutive calendar years, individuals who at the beginning of such period
constituted the Board of Directors (including for this purpose any new director
whose election or nomination for election by the Company’s shareholders was
approved by a vote of at least two thirds of the directors then still in office
who were directors at the beginning of such period or were so approved
themselves) cease for any reason to constitute at least a majority of the Board
of Directors.


 


7.2                                 “Company”
means, in addition to World Heart Corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger to which World Heart Corporation. (or any of its Subsidiaries) is a
party which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so
that if Indemnitee is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, Indemnitee
shall stand in the same position under the provisions of this Agreement with
respect to the resulting or surviving corporation as Indemnitee would have with
respect to such constituent corporation if its separate existence had
continued.


 


7.3                                 “Disinterested
Director” means a director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is sought by Indemnitee, and who
is not an affiliate of Indemnitee.


 


7.4                                 “Expenses”
shall include all reasonable and necessary attorneys’ fees, retainers, court
costs, transcript costs, fees of experts, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the type customarily incurred in
connection with prosecuting, defending, appearing as a witness in, preparing to
prosecute or defend or appear as a witness in, or investigating a Proceeding,
but shall not include any judgments, fines or penalties actually levied against
Indemnitee for such individual’s violations of law other than any monetary penalty
enforced in the case of a criminal or administrative action or proceeding where
the Indemnitee had reasonable grounds for believing that the Indemnitee’s
conduct was lawful.


 


7.5                                 “Independent
Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five years
has


 


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been, retained to
represent: (i) the Company or Indemnitee in any matter material to either
such party (other than with respect to matters concerning the Indemnitee, or
any affiliate thereof, under this Agreement, or of other Indemnitees under
similar indemnification agreements), or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.  Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in any action to determine
Indemnitee’s rights under this Agreement.


 


7.6                                 “Proceeding”
means any pending, threatened or completed action, suit, arbitration, alternate
dispute resolution mechanism, investigation, inquiry, administrative hearing or
any other actual, threatened or completed proceeding, whether brought by or in
the right of the Company or otherwise, and whether civil, criminal,
administrative or investigative, including without limitation any appeal
therefrom, in which Indemnitee was, is or will be involved as a party or
otherwise by reason of (i):  being,
having been or having agreed to become a director or executive officer of the
Company; (ii) any action taken by Indemnitee or of any action on
Indemnitee’s part while acting as director or executive officer of the Company;
or (iii) at the request of the Company, being, having been or having
agreed to become a director, officer or fiduciary of any other entity or
enterprise; and in any such case described above, whether or not serving in any
such capacity at the time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses may be provided
under this Agreement..


 


7.7                                 “Subsidiary”
shall mean any corporation, limited liability company, partnership, joint
venture, trust or other entity of which more that 50% of the outstanding voting
securities or equity interests are owned directly or indirectly by the Company
(a “Substantial Subsidiary”), by the Company and one or more other Substantial
Subsidiary, or by one or more other Substantial Subsidiaries.


 


8.                                       General.


 


8.1                                 The
rights provided by this Agreement shall not be exclusive of any other rights to
which Indemnitee may at any time be entitled under applicable law, the Company’s
Articles of Continuance or By-Laws, each as amended, any other agreement, a
vote of shareholders or a resolution of directors, or otherwise.  Notwithstanding any other provision of this
Agreement, the Company hereby agrees to indemnify Indemnitee to the fullest extent
permitted by applicable law and the Company’s Articles of Continuance and
By-Laws, each as amended, notwithstanding that such indemnification is not
specifically authorized by the other provisions of this Agreement, the Company’s
Articles of Continuance or By-Laws, each as amended, or by statute.  In the event of any change, after the date of
this Agreement, in any applicable law, statute, or rule which expands the
right of a Canadian corporation to indemnify a member of its board of directors
or an executive officer, such changes shall be, ipso facto, within the
purview of Indemnitee’s rights and the Company’s obligations under this
Agreement.  In the event of any change in
any applicable law, statute or rule which narrows the right of a Canadian
corporation to indemnify a member of its Board of Directors or an executive
officer, such changes, to the extent not otherwise required by such law, statute,
or rule to be applied to this Agreement or by the Company’s Articles of
Continuance or By-Laws, each as amended, and provided that such changes do not
conflict with the Company’s Articles


 


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of Continuance or
By-Laws, each as amended, shall have no effect on this Agreement or the parties’
rights and obligations hereunder.


 


8.2                                 This
Agreement shall be effective as of the date set forth on the first page and
may apply to acts or omissions of Indemnitee which occurred prior to such date
if Indemnitee was a director or executive officer of the Company or, at the request
of the Company, was serving at the request of the Company as a director,
officer or fiduciary of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, at the time such act or
omission occurred.  This Agreement shall
continue until and terminate upon the later of: (a) five years after the
date that Indemnitee shall have ceased to serve as a director or executive
officer of the Company or fiduciary of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise which
Indemnitee served at the request of the Company; or (b) the final
termination of all pending Proceedings in respect of which Indemnitee is
granted rights hereunder and of any proceeding commenced by Indemnitee relating
thereto.  This Agreement shall be binding
upon the Company and its successors and assigns (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all,
substantially all or a substantial part of the business or assets of the
Company) and shall inure to the benefit of Indemnitee and Indemnitee’s heirs,
executors and administrators.


 


8.3                                 In
the event of any payment under this Agreement, the Company shall be subrogated
to the extent of such payment to all of the rights of recovery of Indemnitee,
who shall take all action necessary to secure such rights, including execution
of such documents as are necessary to enable the Company to secure or to bring
suit to enforce such rights.


 


8.4                                 Nothing
in this Agreement is intended to require or shall be construed as requiring the
Company to do or fail to do any act in violation of applicable law, including
the Canada Business Corporations Act or the
corporations law of any other jurisdiction pursuant to which the Company may be
continued, or the Company’s Articles of Continuance or By-Laws, each as
amended.  The Company’s inability,
pursuant to court order, to perform its obligations under this Agreement shall
not constitute a breach of this Agreement. 
Moreover, both the Company and Indemnitee acknowledge that in certain
instances, public policy may override applicable law and prohibit the Company
from indemnifying its directors and executive officers under this Agreement or
otherwise.  The Company and Indemnitee
acknowledge that the SEC has taken the position that indemnification is not
permissible for liabilities arising under certain federal securities laws.  If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby; and (b) to the fullest extent possible, the provisions of this
Agreement shall be construed so as to give effect to the intent manifested by
the provision held invalid, illegal or unenforceable.


 


8.5                                 No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both of the parties hereto.  No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.


 


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8.6                                 Indemnitee
agrees to notify the Company as soon as practicable in writing upon being
served with any summons, citation, subpoena, notice of investigation or
inquiry, complaint, indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification or advancement of
Expenses covered hereunder; provided, however, that the failure to give any
such notice shall not disqualify the Indemnitee from indemnification
hereunder.  Such notice shall be provided
to:  (a) the Chief Executive Officer
of the Company at 825 North, 300 West, Suite NEI07, Salt Lake City, Utah;
and (b) Virginia Schweitzer, McCarthy Tétrault LLP, 40 Elgin Street, Suite 1400,
Ottawa, Ontario, K1P 5K6.


 


8.7                                 All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if:  (a) actually received; or (b) mailed
by certified or registered mail, postage prepaid, on the third business day
after the date on which it is so mailed.


 


8.8                                 This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware.


 


8.9                                 This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter herein and merges all prior discussions,
understandings and representations between them.


 


8.10                           This
Agreement has been reviewed by each of the parties hereto and their respective
counsel; accordingly, this Agreement shall be deemed to be the product of all
of the parties hereto, and no ambiguity shall be construed in favor of or
against any one of the parties hereto.


 


8.11                           Nothing
in this Agreement shall confer upon Indemnitee any right to continue to serve
as an officer or director of the Company for any period of time or at any
particular rate of compensation.


 


8.12                           This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one instrument.


 


IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on the day and year first above
written.


 


	
   

  	
  WORLD HEART CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEMNITEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Address:

  



 


10

















 


Exhibit A


 


UNDERTAKING


 


1.                                       This Undertaking is submitted pursuant to
the Indemnification Agreement dated as of
                                
between World Heart Corporation, a corporation continued under the laws of
Canada (the “Company”), and the undersigned (the “Agreement”).  Capitalized terms used but not defined herein
shall have the respective meanings set forth in the Agreement.


 


2.                                       I
am requesting advancement of certain Expenses in connection with a Proceeding.


 


3.                                       I
hereby undertake to repay such advances if it shall ultimately be determined
that I am not entitled to be indemnified by the Company therefor under the
Agreement or otherwise.


 


4.                                       The
expenses have been incurred in connection with the following matter(s):


 


 


	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  
	
   

  	
  Dated: