EXHIBIT 4.1
MICROHEART, INC.
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COMMON STOCK REPURCHASE AGREEMENT
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MICROHEART, INC.
COMMON STOCK REPURCHASE AGREEMENT
THIS COMMON STOCK REPURCHASE AGREEMENT (the "AGREEMENT") is made as of
the 5th day of April, 2002 (the "EFFECTIVE DATE") by and among MICROHEART, INC.
(F/K/A MICROHEART HOLDINGS, INC.), a Delaware corporation (the "COMPANY"), and
CARDIOGENESIS CORPORATION (F/K/A ECLIPSE SURGICAL TECHNOLOGIES, INC.) (the
"SELLER").
WHEREAS, the Seller currently holds an aggregate of eleven million five
hundred one thousand (11,501,000) shares of the Common Stock of the Company
pursuant to the exercise of those certain Common Stock Warrants Nos. CSW-1 and
CSW-5 between Seller and the Company dated November 20, 1998 and pursuant to the
Purchase Agreement dated November 20, 1998 by and among the Company, Seller and
certain other parties;
WHEREAS, the Seller desires to sell eleven million five hundred one
thousand (11,501,000) shares of the Common Stock of the Company as herein
described, on the terms and conditions hereinafter set forth; and
WHEREAS, the Company desires to purchase eleven million five hundred one
thousand (11,501,000) shares of the Common Stock of the Company on the terms and
conditions hereinafter set forth.
The parties hereby agree as follows:
- - TERMS OF THE REPURCHASE
o THE REPURCHASE. Subject to the terms of this Agreement, Seller agrees to
sell to the Company and the Company agrees to purchase from the Seller,
eleven million five hundred one thousand (11,501,000) shares of the
Company's Common Stock (the "SHARES") for an aggregate purchase price of
two million two hundred eighty five thousand one hundred fifty dollars
($2,285,150).
- - THE CLOSING
o CLOSING DATE. The closing of the purchase and sale of the Shares (the
"CLOSING") shall be held on the Effective Date, or at such other time as
the Company and the Seller shall agree (the "CLOSING DATE").
o DELIVERY. At the Closing (i) the Seller will deliver to the Company
stock certificates representing the Shares duly endorsed for transfer
and any such other instruments of assignment and transfer effective in
each case to vest in the Company all right, title and interest in and to
the Shares, free of any liens, encumbrances, mortgages, pledges or
charges; and (ii) the Company will deliver to the Seller a check or wire
transfer made payable to the order of the Seller.
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- - REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Company as follows:
o CORPORATE POWER. The Seller will have at the Closing Date all requisite
corporate power to execute and deliver this Agreement and to carry out
and perform its obligations under the terms of this Agreement.
o OWNERSHIP. Seller represents and warrants that it is the sole legal and
beneficial owner of all right, title and interest to the Shares, that
the Shares are not subject to any mortgage, pledge, lien, encumbrance or
charge and that no other person has any interest in the Shares or any
portion or interest thereof.
o AUTHORIZATION. All corporate action on the part of the Seller, its
directors and its stockholders necessary for the authorization,
execution, delivery and performance of this Agreement by the Seller and
the performance of the Seller's obligations hereunder has been taken.
This Agreement shall constitute a valid and binding obligation of the
Seller enforceable in accordance with its terms.
o NO CONSENTS. No consent, authorization, approval, order, license,
certificate or permit or act of or from, or declaration or filing with,
any foreign, federal, state, local or other governmental authority or
regulatory body or any court or other tribunal or any party to any
contract, agreement, instrument, lease or license to which the Seller is
a party or to which the Seller is subject that is required for the
execution, delivery or performance by the Seller of this Agreement or
any of the other agreements, instruments and documents being or to be
executed and delivered hereunder or in connection herewith or for the
consummation of the transactions contemplated hereby.
o FURTHER ASSURANCES. Seller agrees and covenants that at any time and
from time to time it will promptly execute and deliver to the Company
such further instruments and documents and take such further action as
the Company may reasonably require in order to carry out the full intent
and purpose of this Agreement.
- - REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Seller as follows:
o CORPORATE POWER. The Company will have at the Closing Date all requisite
corporate power to execute and deliver this Agreement and to carry out
and perform its obligations under the terms of this Agreement.
o AUTHORIZATION. All corporate action on the part of the Company, its
directors and its stockholders necessary for the authorization,
execution, delivery and performance of this Agreement by the Company and
the performance of the Company's obligations hereunder has been taken.
This Agreement shall constitute a valid and binding obligation of the
Company enforceable in accordance with its terms.
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o NO CONSENTS. No consent, authorization, approval, order, license,
certificate or permit or act of or from, or declaration or filing with,
any foreign, federal, state, local or other governmental authority or
regulatory body or any court or other tribunal or any party to any
contract, agreement, instrument, lease or license to which the Company
is a party or to which the Company is subject that is required for the
execution, delivery or performance by the Company of this Agreement or
any of the other agreements, instruments and documents being or to be
executed and delivered hereunder or in connection herewith or for the
consummation of the transactions contemplated hereby.
- - MISCELLANEOUS
o BINDING AGREEMENT. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors
and assigns of the parties. Nothing in this Agreement, expressed or
implied, is intended to confer upon any third party any rights,
remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
o GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the State of California as applied to agreements among
California residents, made and to be performed entirely within the State
of California.
o COUNTERPARTS. 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.
o EXPENSES. Each party will bear its respective expenses and legal fees
incurred with respect to this Agreement, and the transactions
contemplated hereby.
o INDEPENDENT COUNSEL. Seller acknowledges that this Agreement has been
prepared on behalf of the Company by Cooley Godward LLP, counsel to the
Company and that Cooley Godward LLP does not represent, and is not
acting on behalf of, Seller. Seller has been provided with an
opportunity to consult with Seller's own counsel with respect to this
Agreement.
o 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.
o NOTICES. All notices required or permitted hereunder shall be in writing
and shall be deemed effectively given: (a) upon personal delivery to the
party to be notified, (b) when sent by confirmed telex or facsimile if
sent during normal business hours of the recipient, if not, then on the
next business day, (c) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid,
or (d) one (1) day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent to the Company or Seller at
the addresses indicated on the signature page hereto or at such other
addresses as the
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Company or Seller may designate by ten (10) days advance written notice
to the other party hereto.
o MODIFICATION; WAIVER. No modification or waiver of any provision of this
Agreement or consent to departure therefrom shall be effective unless in
writing and approved by the Company and the Seller.
o ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the
subjects hereof and no party shall be liable or bound to any other party
in any manner by any representations, warranties, covenants and
agreements except as specifically set forth herein.
IN WITNESS WHEREOF, the parties have executed this COMMON STOCK
REPURCHASE AGREEMENT as of the date first written above.
COMPANY:
MICROHEART, INC.
By: /s/ Richard L. Mueller
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Title:
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Address: 2634 Bayshore Parkway
Mountain View, CA 94043
SELLER:
CARDIOGENESIS CORPORATION
By: /s/ Michael J. Quinn
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Title: Chairman and Chief Executive Officer
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Address: 26632 Towne Centre Dr.
Foothill Ranch, CA 92610
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