- Post-Effective Amendment to an S-8 filing (S-8 POS)
February 05 2010 - 5:27PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on February 5, 2010
Registration No. 333-133258
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
Post-Effective
Amendment No. 1 to
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
World Heart Corporation
(Exact name of Registrant as specified in its charter)
Not Applicable
(Translation of
Registrants name into English)
Delaware
(State or other
jurisdiction of incorporation or organization)
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52-2247240
(I.R.S. Employer
Identification No.)
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4750
Wiley Post Way, Suite 120
Salt
Lake City, UT 84116
Tel:
(801) 355-6255
Fax: (801) 355-7622
(Address and telephone
number of Registrants principal executive offices)
World Heart Corporation 2006 Equity Incentive Plan
(formerly known as World Heart Corporation Employee Stock
Option Plan)
(Full Title of the Plan)
J. Alex Martin
President and Chief Executive Officer
World Heart Corporation
4750 Wiley Post Way, Suite 120
Salt Lake City, UT 84116
(801) 355-6255
(Name, address and telephone number of agent for service)
Copies of communications to:
Mark Weeks
Cooley Godward Kronish LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Tel: (650) 843-5000
Fax: (650) 849-7400
Indicate by check
mark whether the registrant is a large accelerated filer, an accelerated filer,
a non-accelerated filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated filer and smaller reporting company
in Rule 12b-2 of the Exchange Act.
Large accelerated filer
o
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Accelerated filer
o
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Non-accelerated filer
o
(Do not check if a smaller reporting
company)
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Smaller reporting company
x
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EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to the
Registration Statement on Form S-8 (File No. 333-133258) filed with
the Securities and Exchange Commission on April 13, 2006 (the Registration
Statement), is being filed pursuant to Rule 414(d) under the
Securities Act of 1933, as amended (the Securities Act), to reflect the
change in the jurisdiction of incorporation of World Heart Corporation (the Company)
from the federal jurisdiction of Canada to the State of Delaware (the Domestication)
on January 1, 2010. In accordance with Rule 414(d) under the
Securities Act, World Heart Corporation, a Delaware corporation, as the
successor issuer to World Heart Corporation, a corporation under the federal
jurisdiction of Canada, hereby expressly adopts the Registration Statement as
its own for all purposes of the Securities Act and the Securities Exchange Act
of 1934, as amended (the Exchange Act).
The rights of holders of the Companys common stock
are now governed by its Delaware certificate of incorporation, its Delaware
bylaws and the Delaware General Corporation Law, each of which is described in
the Companys proxy statement filed with the Securities and Exchange Commission
on August 18, 2009. The
Domestication did not result in any change to the Companys name, ticker
symbol, CUSIP number, business, management, executive officers, assets,
liabilities or net worth.
The registration fees were paid at the time of filing
of the Registration Statement. Because
no additional securities are being registered, no further registration fee is
required.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 6. Indemnification of
Directors and Officers.
Section 102(b)(7) of the General Corporation Law of the State
of Delaware, or DGCL, permits a Delaware corporation to limit the personal
liability of its directors in accordance with the provisions set forth in that
section. Section 145 of the DGCL authorizes a court to award, or a
corporations board of directors to grant, indemnity to directors and officers
in terms sufficiently broad to permit such indemnification under certain
circumstances for liabilities including reimbursement for expenses incurred
arising under the Securities Act.
The registrants certificate of incorporation contains provisions
permitted under the DGCL relating to the liability of directors. These
provisions eliminate a directors personal liability for monetary damages
resulting from a breach of fiduciary duty, except in circumstances involving
wrongful acts, such as:
·
any
breach of the directors duty of loyalty to the registrant or its stockholders;
·
any
act or omission not in good faith or that involves intentional misconduct or a
knowing violation of the law;
·
any
act related to unlawful stock repurchases, redemptions or other distribution or
payments of dividends; or
·
any
transaction from which the director derived an improper personal benefit.
2
These provisions do not limit or eliminate the registrants rights or
any stockholders rights to seek non-monetary relief, such as an injunction or
rescission, in the event of a breach of a directors fiduciary duty. These
provisions will not alter a directors liability under federal securities laws.
As permitted by Section 145 of the DGCL, the registrants bylaws
require the registrant to indemnify its directors and officers to the fullest
extent not prohibited by the DGCL or any other applicable law. The registrant
may modify the extent of such indemnification by individual contracts with the
registrants directors and executive officers. Further, the registrant may
decline to indemnify any director or officer in connection with any proceeding
(or part thereof) initiated by such person, unless such indemnification is
expressly required to be made by law, the proceeding was authorized by the
registrants board of directors, such indemnification is provided by the
registrant, in its sole discretion, pursuant to the powers vested in the
registrant under the DGCL or any other applicable law, or otherwise required
under the registrants bylaws.
The registrant is in the process of entering into indemnification
agreements with each of its directors and officers, whereby it will agree to
indemnify its directors and officers to the fullest extent permitted by law,
including indemnification against expenses and liabilities incurred in legal
proceedings to which the director or officer was, or is threatened to be made,
a party by reason of the fact that such director or officer is or was a
director, officer, employee or agent of the registrant, provided that such
director or officer acted in good faith and in a manner that the director or
officer reasonably believed to be in, or not opposed to, the best interest of
the registrant. At present, there is no pending
litigation or proceeding involving any of the registrants directors, officers
or employees for which indemnification is sought, nor is the registrant aware
of any threatened litigation that may result in claims for indemnification by
the registrant.
The registrant has the power to indemnify its other employees and other
agents, as permitted by the DGCL, but the registrant is not required to do so.
The registrant maintains
directors and officers liability insurance. The policy insures the registrants
directors and officers against unindemnified losses arising from certain
wrongful acts in their capacities as directors and officers and reimburses the
registrant for those losses for which the registrant has lawfully indemnified
the directors and officers. The policy contains various exclusions, none of
which apply to any offerings pursuant to this registration statement.
Item
8. Exhibits.
Exhibit
Number
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Description of Documents
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4.1
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Certificate of
Incorporation of the Corporation (1)
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4.2
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Bylaws of the Corporation
(2)
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4.3
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Form of Stock
Certificate (3)
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5.1
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Opinion of Cooley Godward Kronish LLP
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23.1
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Consent of Burr Pilger
Mayer, Inc.
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23.2
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Consent of
PricewaterhouseCoopers LLP
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3
Exhibit
Number
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Description of Documents
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23.3
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Consent of Cooley
Godward Kronish LLP (included in Exhibit 5.1)
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24.1
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Power of Attorney
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99.1
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World Heart Corporation
2006 Equity Incentive Plan (4)
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(1) Incorporated
by reference to Exhibit 4.1 to the
Registrants Post-Effective Amendment No. 1 to
Registration Statement on Form S-3
(Commission File No. 333-155129)
(2) Incorporated
by reference to Exhibit 4.2 to the
Registrants Post-Effective Amendment No. 1 to
Registration Statement on Form S-3
(Commission File No. 333-155129)
(3) Incorporated
by reference to Exhibit 4.2 to the
Registrants Post-Effective Amendment No. 1 to
Registration Statement on Form S-3
(Commission File No. 333-155129)
(4) Incorporated
by reference to Exhibit 10.6 to the
Registrants Form 10-Q filed on November 16,
2009
(Commission File No. 000-28882)
4
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Salt Lake City, State of Utah, on the
5th day of February, 2010.
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WORLD HEART CORPORATION
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By:
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/s/ J.
Alex Martin
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Name:
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J. Alex Martin
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Title:
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President and
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Chief Executive
Officer
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Pursuant to the requirements of the Securities Act of
1933, this registration statement has been signed by the following persons in
the capacities and on the dates indicated.
Signature
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Title
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By:
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/s/ J. Alex Martin
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President, Chief
Executive Officer and Director
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Name: J. Alex Martin
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(Principal Executive
Officer)
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Date: February 5, 2010
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By:
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/s/ Morgan R. Brown
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Chief Financial Officer
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Name: Morgan R. Brown
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(Principal Financial
Officer and Principal
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Date: February 5, 2010
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Accounting Officer)
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By:
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/s/ Michael S. Estes*
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Chairman of the Board
of Directors
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Name: Michael S. Estes
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Date: February 5, 2010
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By:
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/s/ Jeani Delagardelle*
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Director
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Name: Jeani Delagardelle
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Date: February 5, 2010
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By:
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/s/ William C. Garriock*
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Director
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Name: William C. Garriock
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Date: February 5, 2010
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By:
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/s/ Anders D. Hove*
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Director
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Name: Anders D. Hove
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Date: February 5, 2010
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By:
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/s/ Austin W. Marxe*
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Director
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Name: Austin W. Marxe
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Date: February 5, 2010
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*
By:
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/s/
J. Alex Martin
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J.
Alex Martin,
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as Attorney-in-Fact
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5
EXHIBIT INDEX
Exhibit
Number
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Description of Documents
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4.1
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Certificate of
Incorporation of the Corporation (1)
|
|
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4.2
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Bylaws of the Corporation
(2)
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|
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4.3
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Form of Stock
Certificate (3)
|
|
|
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5.1
|
|
Opinion of Cooley Godward Kronish LLP
|
|
|
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23.1
|
|
Consent of Burr Pilger
Mayer, Inc.
|
|
|
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23.2
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Consent of
PricewaterhouseCoopers LLP
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23.3
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Consent of Cooley
Godward Kronish LLP (included in Exhibit 5.1)
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24.1
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Power of Attorney
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99.1
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World Heart Corporation
2006 Equity Incentive Plan (4)
|
(1) Incorporated
by reference to Exhibit 4.1 to the
Registrants Post-Effective Amendment No. 1 to
Registration Statement on Form S-3
(Commission File No. 333-155129)
(2) Incorporated
by reference to Exhibit 4.2 to the
Registrants Post-Effective Amendment No. 1 to
Registration Statement on Form S-3
(Commission File No. 333-155129)
(3) Incorporated
by reference to Exhibit 4.2 to the
Registrants Post-Effective Amendment No. 1 to
Registration Statement on Form S-3
(Commission File No. 333-155129)
(4) Incorporated
by reference to Exhibit 10.6 to the
Registrants Form 10-Q filed on November 16,
2009
(Commission File No. 000-28882)
6
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