Contract
Exhibit 4.3
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “ACT), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AND PURSUANT TO
THE PROVISIONS OF ARTICLE 5 BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN
THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES,
SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE STOCK
Company: Xxxxxx Medical, Inc., a Delaware corporation
Number of Shares: [___] [insert number of shares equal to: (a) ___% multiplied by the total dollar amount of the relevant Growth Capital Advance (both SVB’s and Gold Hill’s portion), divided by (b) $1.40]
Class of Stock: Series B Preferred
Warrant Price: $1.40 per share
Issue Date: [ ___,] 2005 [insert relevant Growth Capital Advance Funding Date]
Expiration Date: [ ___,] 2010 [insert date 5 years after relevant Growth Capital Advance Funding Date]
Number of Shares: [___] [insert number of shares equal to: (a) ___% multiplied by the total dollar amount of the relevant Growth Capital Advance (both SVB’s and Gold Hill’s portion), divided by (b) $1.40]
Class of Stock: Series B Preferred
Warrant Price: $1.40 per share
Issue Date: [ ___,] 2005 [insert relevant Growth Capital Advance Funding Date]
Expiration Date: [ ___,] 2010 [insert date 5 years after relevant Growth Capital Advance Funding Date]
THIS WARRANT CERTIFIES THAT, for the agreed upon value of $1.00 and for other good and
valuable consideration, including without limitation the mutual promises contained in that certain
Joint Loan and Security Agreement of even date herewith (the “Loan Agreement”) entered into by and
among SILICON VALLEY BANK (“Holder”), Gold Hill Venture Lending 03, LP and the company named above
(the “Company”), Holder is entitled to purchase the number of fully paid and nonassessable shares
of the Class of Stock (the “Shares”) of the Company at the Warrant Price, all as set forth above
and as adjusted pursuant to Article 2 of this Warrant, subject to the provisions and upon the terms
and conditions set forth in this Warrant. This Warrant is issued in connection with the Loan
Agreement.
ARTICLE 1 EXERCISE.
1.1 Method of Exercise. Holder may exercise this Warrant by delivering a duly
executed Notice of Exercise in substantially the form attached as Appendix 1 and this Warrant to
the principal office of the Company. Unless Holder is exercising the conversion right set forth in
Article 1.2, Holder shall also deliver to the Company a check, wire transfer (to an account
designated by the Company), or other form of payment acceptable to the Company for the aggregate
Warrant Price for the Shares being purchased.
1.2 Conversion Right. In lieu of exercising this Warrant as specified in Article 1.1,
if the fair market value of the Shares is greater than the Warrant Price, Holder may elect to
receive shares equal to the value (as determined below) of this Warrant (or the portion thereof
being exercised) by surrender of this Warrant at the principal office of the Company together with
a duly executed Notice of Exercise, in which event the Company shall issue to Holder a number of
1.
shares of Series B Preferred Stock computed using the following formula (and, if applicable, a
new warrant evidencing the balance of the shares remaining subject to this Warrant):
X=
|
Y(A-B)
|
Where:
|
X = | the number of shares of Series B Preferred Stock to be issued to Holder | ||
| Y = | the number of shares of Series B Preferred Stock purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being exercised | |||
| A = | the fair market value of one share of the Company’s Series B Preferred Stock | |||
| B = | the Warrant Price, as adjusted |
The fair market value of the Shares shall be determined pursuant to Article 1.3.
1.3 Fair Market Value. If the Company’s common stock is traded in a public market and
the Shares are common stock, the fair market value of each Share shall be the closing price of a
Share reported for the business day immediately before Holder delivers its Notice of Exercise to
the Company (or in the instance where the Warrant is exercised immediately prior to the
effectiveness of the Company’s initial public offering, the “price to public” per share price
specified in the final prospectus relating to such offering). If the Company’s common stock is
traded in a public market and the Shares are preferred stock, the fair market value of a Share
shall be the closing price of a share of the Company’s common stock reported for the business day
immediately before Holder delivers its Notice of Exercise to the Company (or, in the instance where
the Warrant is exercised immediately prior to the effectiveness of the Company’s initial public
offering, the initial “price to public” per share price specified in the final prospectus relating
to such offering), in both cases, multiplied by the number of shares of the Company’s common stock
into which a Share is convertible. If the Company’s common stock is not traded in a public market,
the Board of Directors of the Company shall determine fair market value in its reasonable good
faith judgment.
1.4 Delivery of Certificate and New Warrant. Promptly after Holder exercises or
converts this Warrant and, if applicable, the Company receives payment of the aggregate Warrant
Price, the Company shall deliver to Holder a certificate or certificates for the Shares acquired
and, if this Warrant has not been fully exercised or converted and has not expired, a new Warrant
representing the Shares not so acquired.
1.5 Replacement of Warrants. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss,
theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and
amount to the Company or, in the case of mutilation on surrender and cancellation of this Warrant,
the Company shall execute and deliver, in lieu of this Warrant, a new warrant of like tenor.
2.
1.6 Treatment of Warrant Upon Acquisition of Company.
1.6.1 “Acquisition”. For the purpose of this Warrant, “Acquisition” means (a) any
consolidation or merger of the Company with or into any other corporation or other entity or
person, or any other corporate reorganization, in which the stockholders of the Company immediately
prior to such consolidation, merger or reorganization, own less than 50% of the voting power of the
surviving entity immediately after such consolidation, merger or reorganization; (b) any
transaction or series of related transactions to which the Company is a party in which in excess of
fifty percent (50%) of the Company’s voting power is transferred provided that an Acquisition shall
not include (x) any consolidation or merger effected exclusively to change the domicile of the
Company or (y) any transaction or series of transactions principally for bona fide equity financing
purposes in which cash is received by the Company or indebtedness of the Company is cancelled or
converted or a combination thereof; or (c) a sale, lease, or other disposition of all or
substantially all of the assets of the Company.
1.6.2 Treatment of Warrant at Acquisition.
A) Upon the written request of the Company, Holder agrees that, in the event of an Acquisition that
is not an asset sale and in which the sole consideration is cash, either (a) Holder shall exercise
its conversion or purchase right under this Warrant and such exercise will be deemed effective
immediately prior to the consummation of such Acquisition or (b) if Holder elects not to exercise
the Warrant, this Warrant will expire upon the consummation of such Acquisition. The Company shall
provide the Holder with written notice of its request relating to the foregoing (together with such
reasonable information as the Holder may request in connection with such contemplated Acquisition
giving rise to such notice), which is to be delivered to Holder not less than ten (10) days prior
to the closing of the proposed Acquisition.
B) Upon the written request of the Company, Holder agrees that, in the event of an Acquisition that
is an “arms length” sale of all or substantially all of the Company’s assets (and only its assets)
to a third party that is not an Affiliate (as defined below) of the Company (a “True Asset Sale”),
either (a) Holder shall exercise its conversion or purchase right under this Warrant and such
exercise will be deemed effective immediately prior to the consummation of such Acquisition or (b)
if Holder elects not to exercise the Warrant, this Warrant will continue until the Expiration Date
if the Company continues as a going concern following the closing of any such True Asset Sale. The
Company shall provide the Holder with written notice of its request relating to the foregoing
(together with such reasonable information as the Holder may request in connection with such
contemplated Acquisition giving rise to such notice), which is to be delivered to Holder not less
than ten (10) days prior to the closing of the proposed Acquisition.
C) Upon the written request of the Company, Holder agrees that, in the event of a Acquisition of
the Company by a publicly traded acquirer for either a combination of cash and shares or shares
only of the publicly traded company, if, on the record date for the Acquisition, the fair market
value of the Shares (or other securities issuable upon exercise of this Warrant) is equal to or
greater than three (3) times the Warrant Price, either (a) Holder shall exercise its conversion or
purchase right under this Warrant and such exercise will be deemed effective immediately prior to
the consummation of such Acquisition and the Holder shall participate in
3.
the Acquisition as a holder of the Shares (or other securities issuable upon exercise of the
Warrant) on the same terms as other holders of the same class of securities of the Company, or (b)
if Holder elects not to exercise the Warrant, this Warrant will expire upon the consummation of
such Acquisition.
D) In the event of any Acquisition other than those particularly described in subsections (A), (B)
or (C) above, the successor entity shall assume the obligations of this Warrant, and this Warrant
shall be exercisable for the same securities, cash, and property as would be payable for the Shares
issuable upon exercise of the unexercised portion of this Warrant as if such Shares were
outstanding on the record date for the Acquisition and subsequent closing (the Warrant Price and/or
number of Shares shall be adjusted accordingly); provided, however, that if the consideration to be
received by Holder for each Share in such Acquisition (assuming exercise of the Warrant) equals or
exceeds three (3) times the Warrant Price, this Warrant shall automatically be exercised pursuant
to Section 1.1 or 1.2 above, at Holder’s option, immediately prior to such Acquisition. The
Company shall provide the Holder with written notice of the Acquisition (together with such
reasonable information as the holder may request in connection with such contemplated Acquisition
giving rise to such notice) and automatic exercise, if applicable, not less than ten (10) days
prior to the closing of the proposed Acquisition. If the consideration to be received by Holder in
the Acquisition is less than three (3) times the Warrant Price for each Share, the Company may, at
its sole election, pay Holder a sum equal to two (2) times the Warrant Price for each Share
exercisable hereunder in exchange for the cancellation of this Warrant prior to or upon the
consummation of the Acquisition.
As used herein “Affiliate” shall mean any person or entity that owns or controls directly or
indirectly ten (10) percent or more of the stock of Company, any person or entity that controls or
is controlled by or is under common control with such persons or entities, and each of such
person’s or entity’s officers, directors, joint venturers or partners, as applicable.
ARTICLE 2 ADJUSTMENTS TO THE SHARES.
2.1 Stock Dividends, Splits, Etc. If the Company declares or pays a dividend on the
Shares payable in common stock, or other securities, then upon exercise of this Warrant, for each
Share acquired, Holder shall receive, without cost to Holder, the total number and kind of
securities to which Holder would have been entitled had Holder owned the Shares of record as of the
date the dividend occurred. If the Company subdivides the Shares by reclassification or otherwise
into a greater number of shares or takes any other action which increase the amount of stock into
which the Shares are convertible, the number of shares purchasable hereunder shall be
proportionately increased and the Warrant Price shall be proportionately decreased. If the
outstanding shares are combined or consolidated, by reclassification or otherwise, into a lesser
number of shares, the Warrant Price shall be proportionately increased and the number of Shares
shall be proportionately decreased.
2.2 Reclassification, Exchange, Combinations or Substitution. Upon any
reclassification, exchange, substitution, or other event that results in a change of the number
and/or class of the securities issuable upon exercise or conversion of this Warrant, Holder shall
be entitled to receive, upon exercise or conversion of this Warrant, the number and kind of
securities and property that Holder would have received for the Shares if this Warrant had been
4.
exercised immediately before such reclassification, exchange, substitution, or other event.
Such an event shall include any automatic conversion of the outstanding or issuable securities of
the Company of the same class or series as the Shares to common stock pursuant to the terms of the
Company’s Certificate of Incorporation upon the closing of a registered public offering of the
Company’s common stock. The Company or its successor shall promptly issue to Holder an amendment
to this Warrant setting forth the number and kind of such new securities or other property issuable
upon exercise or conversion of this Warrant as a result of such reclassification, exchange,
substitution or other event that results in a change of the number and/or class of securities
issuable upon exercise or conversion of this Warrant (provided that if the amendment to this
Warrant is actually an amended and restated warrant, then Holder shall be required to return this
original Warrant to the Company to exchange for the amended and restated warrant). The amendment
to this Warrant shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article 2 including, without limitation,
adjustments to the Warrant Price and to the number of securities or property issuable upon exercise
of the new Warrant. The provisions of this Article 2.2 shall similarly apply to successive
reclassifications, exchanges, substitutions, or other events.
2.3 Adjustments for Diluting Issuances. The Warrant Price and the number of Shares
issuable upon exercise of this Warrant or, if the Shares are preferred stock, the number of shares
of common stock issuable upon conversion of the Shares, shall be subject to adjustment, from time
to time in the manner set forth in the Company’s Certificate of Incorporation as if the Shares were
issued and outstanding on and as of the date of any such required adjustment. The provisions set
forth in the Company’s Certificate of Incorporation in effect as of the Issue Date for the series
and class of stock which the Shares consist may not be amended, modified or waived, without the
prior written consent of Holder, unless such amendment, modification or waiver affects each share
of such series or class of stock in the same manner other than with respect to any difference in
the original issue price of such shares.
2.4 No Impairment. The Company shall not, by amendment of its Articles or Certificate
(as applicable) of Incorporation or through a reorganization, transfer of assets, consolidation,
merger, dissolution, issue, or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or performed under this
Warrant by the Company, but shall at all times in good faith assist in carrying out of all the
provisions of this Article 2 and in taking all such action as may be necessary or appropriate to
protect Holder’s rights under this Article against impairment. Notwithstanding the foregoing,
nothing in this Section 2.4 shall prohibit the Company from amending its Certificate of
Incorporation with the requisite consent of the stockholders and the Board of Directors so long as
such amendment affects the rights granted to Holder associated with the Shares in the same manner
as the other holders of Series B Preferred Stock other than with respect to any difference in the
original issue price of such shares.
2.5 Fractional Shares. No fractional Shares shall be issuable upon exercise or
conversion of this Warrant and the number of Shares to be issued shall be rounded down to the
nearest whole Share. If a fractional share interest arises upon any exercise or conversion of the
Warrant, the Company shall eliminate such fractional share interest by paying Holder the amount
computed by multiplying the fractional interest by the fair market value of a full Share.
5.
2.6 Certificate as to Adjustments. Upon each adjustment of the Warrant Price, the
Company shall promptly notify Holder in writing, and, at the Company’s expense, promptly compute
such adjustment, and furnish Holder with a certificate of its Chief Financial Officer setting forth
such adjustment and the facts upon which such adjustment is based. The Company shall, upon written
request, furnish Holder a certificate setting forth the Warrant Price in effect upon the date
thereof and the series of adjustments leading to such Warrant Price.
ARTICLE 3 REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 Representations and Warranties. The Company represents and warrants to the Holder
as follows:
(a) The initial Warrant Price referenced on the first page of this Warrant is not greater than
the price per share at which the Company’s Series B Preferred Stock were last issued in an
arms-length transaction in which at least $500,000 of the Shares were sold.
(b) All Shares which may be issued upon the exercise of the purchase right represented by this
Warrant, and all securities, if any, issuable upon conversion of the Shares, shall, upon issuance,
be duly authorized, validly issued, fully paid and nonassessable, and free of any liens and
encumbrances except for restrictions on transfer provided for herein or under applicable federal
and state securities laws.
(c) The Company further covenants and agrees that, during the period within which the rights
represented by this Warrant may be exercised, the Company will at all times have authorized and
reserved for the purpose of issue or transfer upon exercise of the subscription rights evidenced by
this Warrant, a sufficient number of Shares of authorized but unissued stock, or other securities
and property, when and as required to provide for the exercise of the rights represented by this
Warrant.
3.2 Notice of Certain Events. If the Company proposes at any time (a) to declare any
dividend or distribution upon any of its stock, whether in cash, property, stock, or other
securities and whether or not a regular cash dividend; (b) to effect any reclassification or
recapitalization of any of its stock; (c) to merge or consolidate with or into any other
corporation, or sell, lease, license, or convey all or substantially all of its assets, or to
liquidate, dissolve or wind up; or (d) offer holders of registration rights the opportunity to
participate in an underwritten public offering of the Company’s securities for cash, then, in
connection with each such event, the Company shall give Holder: (1) at least 10 days prior written
notice of the date on which a record will be taken for such dividend, distribution, or subscription
rights (and specifying the date on which the holders of common stock will be entitled thereto) or
for determining rights to vote, if any, in respect of the matters referred to in (b) and (c) above;
(2) in the case of the matters referred to in (b) and (c) above at least 10 days prior written
notice of the date when the same will take place (and specifying the date on which the holders of
common stock will be entitled to exchange their common stock for securities or other property
deliverable upon the occurrence of such event); and (3) in the case of the matter referred to in
(d) above, the same notice as is given to the holders of such registration rights. The Company
shall send a concurrent written notice to Holder if the Company sends any written notice to its
preferred stockholders regarding the Company offering for sale any shares of the Company’s capital
stock (or other securities
6.
convertible into such capital stock), other than (i) pursuant to the Company’s stock option or
other compensatory plans, (ii) in connection with commercial credit arrangements or equipment
financings, or (iii) in connection with strategic transactions for purposes other than capital
raising.
3.3 Registration Under Securities Act of 1933, as amended. The Company agrees that
the Shares or, if the Shares are convertible into common stock of the Company, such common stock,
shall have certain incidental, or “Piggyback,” registration rights pursuant to and as set forth in
the Company’s Amended and Restated Investor Rights Agreement dated as of May 21, 2004 (the
“Investor Rights Agreement”) as it may be amended from time to time or similar agreement.
The Company will use its best efforts to amend such agreement within sixty (60) days of the Issue
Date such that Holder shall become a party to the Investor Rights Agreement for the purposes of
this Section 3.3; provided that if Section 5.3 or Section 5.4 of this Warrant conflicts with any
provisions of the Investor Rights Agreement, the provisions of Section 5.3 or Section 5.4 of this
Warrant, as applicable, shall control until this Warrant has been fully exercised or terminated.
The provisions set forth in the Company’s Investor Rights Agreement or similar agreement relating
to the above in effect following such amendment may not be amended, modified or waived without the
prior written consent of Holder unless such amendment, modification or waiver affects the rights
associated with the Shares in the same manner as such amendment, modification, or waiver affects
the rights associated with all other shares of the same series and class as the Shares granted to
the Holder other than with respect to any difference in the original issue price of such shares.
3.4 No Shareholder Rights. Except as provided in this Warrant, the Holder will not
have any rights as a shareholder of the Company until the exercise of this Warrant.
ARTICLE 4 REPRESENTATIONS, WARRANTIES OF THE HOLDER. The Holder represents and warrants to
the Company as follows:
4.1 Purchase for Own Account. This Warrant and the securities to be acquired upon
exercise of this Warrant by the Holder will be acquired for investment for the Holder’s account,
not as a nominee or agent, and not with a view to the public resale or distribution within the
meaning of the Act. Holder also represents that the Holder has not been formed for the specific
purpose of acquiring this Warrant or the Shares.
4.2 Disclosure of Information. The Holder has received or has had full access to all
the information it considers necessary or appropriate to make an informed investment decision with
respect to the acquisition of this Warrant and its underlying securities. The Holder further has
had an opportunity to ask questions and receive answers from the Company regarding the terms and
conditions of the offering of this Warrant and its underlying securities and to obtain additional
information (to the extent the Company possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify any information furnished to the Holder or to
which the Holder has access.
4.3 Investment Experience. The Holder understands that the purchase of this Warrant
and its underlying securities involves substantial risk. The Holder has experience as an investor
in securities of companies in the development stage and acknowledges that the Holder can bear
7.
the economic risk of such Holder’s investment in this Warrant and its underlying securities
and has such knowledge and experience in financial or business matters that the Holder is capable
of evaluating the merits and risks of its investment in this Warrant and its underlying securities
and/or has a preexisting personal or business relationship with the Company and certain of its
officers, directors or controlling persons of a nature and duration that enables the Holder to be
aware of the character, business acumen and financial circumstances of such persons.
4.4 Accredited Investor Status. The Holder is an “accredited investor” within the
meaning of Regulation D promulgated under the Act.
4.5 The Act. The Holder understands that this Warrant and the Shares issuable upon
exercise or conversion hereof have not been registered under the Act in reliance upon a specific
exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the
Holder’s investment intent as expressed herein. The Holder understands that this Warrant and the
Shares issued upon any exercise or conversion hereof must be held indefinitely unless subsequently
registered under the Act and qualified under applicable state securities laws, or unless exemption
from such registration and qualification are otherwise available.
ARTICLE 5 MISCELLANEOUS.
5.1 Term: This Warrant is exercisable in whole or in part at any time and from time to
time on or before the Expiration Date.
5.2 Legends. This Warrant and the Shares (and the securities issuable, directly or
indirectly, upon conversion of the Shares, if any) shall be imprinted with a legend in
substantially the following form:
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE
AND, EXCEPT AND PURSUANT TO THE PROVISIONS OF ARTICLE 5 BELOW, MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED
UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
5.3 Compliance with Securities Laws on Transfer. This Warrant and the Shares issuable
upon exercise of this Warrant (and the securities issuable, directly or indirectly, upon conversion
of the Shares, if any) may not be transferred or assigned in whole or in part without compliance
with applicable federal and state securities laws by the transferor and the transferee (including,
without limitation, the delivery of investment representation letters and legal opinions reasonably
satisfactory to the Company, as reasonably requested by the Company) and the transferee agrees to
be bound by all of the terms and conditions of this Warrant. The Company shall not require Holder
to provide an opinion of counsel if the transfer is to (a) Holder’s parent
8.
company, SVB Financial Group (formerly Silicon Valley Bancshares), or (b) any other affiliate
of Holder provided that Holder provides the Company with appropriate documentation of such entity’s
affiliate status. Additionally, the Company shall also not require an opinion of counsel if there
is no material question as to the availability of current information as referenced in Rule 144(c),
Holder represents that it has complied with Rule 144(d) and (e) in reasonable detail, the selling
broker represents that it has complied with Rule 144(f), and the Company is provided with a copy of
Holder’s notice of proposed sale.
5.4 Transfer Procedure. Upon receipt by Holder of the executed Warrant, Holder will
transfer all of this Warrant to Holder’s parent company, SVB Financial Group, by execution of an
Assignment substantially in the form of Appendix 2 whereby the transferee agrees to be bound by all
of the obligations of Holder under this Warrant. Subject to the provisions of Article 5.3 and upon
providing Company with written notice, SVB Financial Group and any subsequent Holder may transfer
all or part of this Warrant or the Shares issuable upon exercise of this Warrant (or the Shares
issuable directly or indirectly, upon conversion of the Shares, if any) to any transferee,
provided, however, in connection with any such transfer, SVB Financial Group or any subsequent
Holder will give the Company notice of the portion of the Warrant being transferred with the name,
address and taxpayer identification number of the transferee and Holder will surrender this Warrant
to the Company for reissuance to the transferee(s) (and Holder if applicable) by execution of an
Assignment substantially in the form of Appendix 2 whereby the transferee agrees to be bound by all
of the obligations of Holder under this Warrant. The Company may refuse to transfer this Warrant
or the Shares to any person who directly competes with the Company, unless, in either case, the
stock of the Company is publicly traded. Notwithstanding anything herein to the contrary, except
for Silicon Valley Bank’s transfer of this Warrant to SVB Financial Group, the Company will not be
obligated to effect any transfer of all or any portion of this Warrant or the Shares held by Holder
if such disposition would require the Company to register securities pursuant to Section 12(g) of
the Securities Exchange Act of 1934, as amended.
5.5 Notices. All notices and other communications from the Company to the Holder, or
vice versa, shall be deemed delivered and effective when given personally or mailed by first-class
registered or certified mail, postage prepaid, at such address as may have been furnished to the
Company or the Holder, as the case may (or on the first business day after transmission by
facsimile) be, in writing by the Company or such Holder from time to time. Effective upon receipt
of the fully executed Warrant and the initial transfer described in Article 5.4 above, all notices
to the Holder shall be addressed as follows until the Company receives notice of a change of
address in connection with a transfer or otherwise:
SVB Financial Group
Attn: Treasury Department
0000 Xxxxxx Xxxxx, XX 000
Xxxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Treasury Department
0000 Xxxxxx Xxxxx, XX 000
Xxxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Notice to the Company shall be addressed as follows until the Holder receives notice of a change in
address:
9.
Xxxxxx Medical, Inc.
Attn: Xxxxx X. Xxxxxxx, Chief Financial Officer
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxxx, Chief Financial Officer
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
5.6 Waiver. This Warrant and any term hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against which enforcement of such
change, waiver, discharge or termination is sought.
5.7 Attorney’s Fees. In the event of any dispute between the parties concerning the
terms and provisions of this Warrant, the party prevailing in such dispute shall be entitled to
collect from the other party all costs incurred in such dispute, including reasonable attorney’s
fees.
5.8 Automatic Conversion upon Expiration. In the event that, upon the Expiration
Date, the fair market value of one Share (or other security issuable upon the exercise hereof) as
determined in accordance with Section 1.3 above is greater than the Warrant Price in effect on such
date, then this Warrant shall automatically be deemed on and as of such date to be converted
pursuant to Section 1.2 above as to all Shares (or such other securities) for which it shall not
previously have been exercised or converted, and the Company shall promptly deliver a certificate
representing the Shares (or such other securities) issued upon such conversion to the Holder.
5.9 Counterparts. This Warrant may be executed in counterparts, all of which together
shall constitute one and the same agreement.
5.10 Governing Law. This Warrant shall be governed by and construed in accordance
with the laws of the State of California, without giving effect to its principles regarding
conflicts of law.
5.11 Market Stand-Off. The Holder and any permitted transferee agree to be bound by
the “Market Stand-Off” provision in Section 1.13 of the Company’s Investor Rights Agreement as it
may be amended from time to time; provided, however, the Market Stand-Off provision set forth in
the Investor Rights Agreement in effect as of the Issue Date for the series and class of stock
which the Shares consist may not be amended, modified or waived, without the prior written consent
of Holder, unless such amendment, modification or waiver affects each share of such series or class
of stock in the same manner other than with respect to any difference in the original issue price
of such shares.
[Remainder of page intentionally left blank; signature page follows)
10.
In Witness Whereof, the Company has caused this Warrant to be executed by its duty authorized
officer as of the Issue Date.
| “COMPANY” | ||||
| XXXXXX MEDICAL, INC. | ||||
By: |
||||
Name:
|
Xxxxxxxx X. Xxxx, M.D., Ph.D. | |||
Title:
|
President and Chief Executive Officer | |||
| Agreed and Accepted: | ||||
| “HOLDER” | ||||
| SILICON VALLEY BANK | ||||
By: |
||||
Name: |
||||
Title: |
||||
11.
APPENDIX 1
NOTICE OF EXERCISE
1. Holder
elects to purchase shares of the Common/Series ___ Preferred
[strike one] Stock of pursuant to the terms of the attached Warrant, and tenders
payment of the purchase price of the shares in full.
[or]
1. Holder elects to convert the attached Warrant into Shares/cash [strike one] in the manner
specified in the Warrant. This conversion is exercised for of the Shares
covered by the Warrant
[Strike paragraph that does not apply.]
2. Please issue a certificate or certificates representing the shares in the name specified
below: .
3. By its execution below and for the benefit of the Company, Holder hereby restates each of
the representations and warranties in Article 4 of the Warrant as the date hereof.
| HOLDER: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Date: | ||||||
12.
APPENDIX 2
ASSIGNMENT
For value received, Silicon Valley Bank hereby sells, assigns and transfers unto
Name:
|
SVB Financial Group | |
Address:
|
0000 Xxxxxx Xxxxx (XX-000) | |
| Xxxxx Xxxxx, XX 00000 | ||
Tax ID:
|
00-0000000 |
that certain Warrant to Purchase Stock issued by Xxxxxx Medical, Inc. (the
“Company’), on (the “Warrant’) together with all rights, title and
interest therein.
| SILICON VALLEY BANK | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Date: |
||||||||
By its execution below, and for the benefit of the Company, SVB Financial Group makes each of the
representations and warranties set forth in Article 4 of the Warrant and agrees to all other
provisions of the Warrant as of the date hereof.
| SVB FINANCIAL GROUP | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
13.
