Contract
Exhibit 4.5
EXECUTION COPY
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT, OR AN EXEMPTION FROM REGISTRATION, UNDER SAID ACT AND LAWS.
SUCH SECURITIES ARE ALSO SUBJECT TO THE TERMS AND CONDITIONS OF A SECOND AMENDED AND
RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT, A THIRD AMENDED AND RESTATED
VOTING AGREEMENT AND A THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT, EACH
DATED AS OF DECEMBER 9, 2003, AND EACH AMONG THE ISSUER AND VARIOUS OF ITS
STOCKHOLDERS ARE ON FILE AT THE PRINCIPAL OFFICE OF THE ISSUER. THE SALE, TRANSFER,
ASSIGNMENT OR OTHER DISPOSITION OF SUCH SECURITIES IS SUBJECT TO THE TERMS OF EACH
SUCH AGREEMENT.
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
OF
VOLCANO THERAPEUTICS, INC.
Expires December 9, 2013
No. W-1
December 9,
2003
FOR VALUE RECEIVED, subject to the provisions hereinafter set forth, the
undersigned, Volcano Therapeutics, Inc., a Delaware corporation (together with its
successors and assigns, the “Issuer”), hereby certifies that
FFC PARTNERS II, L.P.
or its registered assigns is entitled to subscribe for and purchase at an initial
exercise price of $.01 per share, during the period specified in this Warrant, 3,352,070
shares (subject to adjustment as hereinafter provided) of the duly authorized, validly
issued, fully paid and non-assessable Common Stock all subject to adjustment and upon the
terms and conditions as hereinafter provided. Capitalized terms used in this Warrant and
not otherwise defined herein shall have the respective meanings specified in Section 7
hereof.
1. Term. The right to subscribe for and purchase shares of Warrant Stock
represented hereby shall commence on the date of issuance of this Warrant and shall
expire at 5:00 P.M., Eastern Time, on December 9, 2013 (such
period being the “Term”).
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Warrants for the purchase of the same aggregate number of shares of Warrant Stock, each
new Warrant to represent the right to purchase such number of shares of Warrant Stock as
the Holder hereof shall designate at the time of such exchange. All Warrants issued on
transfers or exchanges shall be dated the Closing Date and shall be identical to this
Warrant except as to the number of shares of Warrant Stock issuable pursuant hereto.
(i) The Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the shares of Warrant Stock to be issued upon exercise
hereof are being acquired solely for the Holder’s own account and not as a nominee for
any other party, and for investment, and that the Holder will not offer, sell or
otherwise dispose of this Warrant or any shares of Warrant Stock to be issued upon
exercise hereof except pursuant to an effective registration statement, or an exemption
from registration, under the Securities Act and any applicable state securities laws.
(ii) Except as provided in paragraph (iii) below, this Warrant
and all certificates representing shares of Warrant Stock issued upon exercise hereof
shall be stamped or imprinted with a legend in substantially the following form:
“THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT, OR AN EXEMPTION FROM
REGISTRATION, UNDER SAID ACT AND LAWS.
SUCH SECURITIES ARE ALSO SUBJECT TO THE TERMS AND CONDITIONS OF A RIGHT OF
FIRST REFUSAL AND CO-SALE AGREEMENT, A THIRD AMENDED AND RESTATED VOTING
AGREEMENT AND A THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT, EACH
DATED AS OF DECEMBER 9, 2003, AND EACH AMONG THE ISSUER AND VARIOUS OF ITS
STOCKHOLDERS ARE ON FILE AT THE PRINCIPAL OFFICE OF THE ISSUER. THE SALE,
TRANSFER, ASSIGNMENT OR OTHER DISPOSITION OF SUCH SECURITIES IS SUBJECT TO
THE TERMS OF SUCH AGREEMENT.”
(iii) The restrictions imposed by this Section 2(e) upon the
transfer of this Warrant and the shares of Warrant Stock to be purchased upon exercise
hereof shall terminate (A) when such securities shall have been effectively registered
under the Securities Act, or (B) upon the Issuer’s receipt of an opinion of counsel, in
form and substance reasonably satisfactory to the Issuer (it being understood that
in-house counsel to the Holder shall be deemed to be acceptable counsel), addressed to
the Issuer to the effect that such restrictions are no longer required to ensure
compliance with the Securities Act. Whenever such restrictions shall cease and terminate
as to any such securities, the Holder thereof shall be entitled to receive from the
Issuer (or its transfer agent and registrar), without expense (other than applicable
transfer taxes, if any), new Warrants (or, in the case of shares of Warrant Stock,
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new stock certificates) of like tenor not bearing the applicable legends required by
paragraph (ii) above relating to the Securities Act and state securities laws.
(i) Without limiting any other provision hereof, in case the Issuer after the
Closing Date shall do any of the following (each a
“Triggering Event”) (a) consolidate
with or merge into any other Person and the Issuer shall not be the continuing or
surviving corporation of such consolidation or merger, or (b) permit any other Person to
consolidate with or merge into the Issuer and the Issuer shall be the continuing or
surviving Person but, in connection with such consolidation or merger, any Capital Stock
of the Issuer shall be changed into or exchanged for securities of any other Person or
cash or any other property, or (c) transfer all or substantially all of its properties or
assets to any other Person, or (d) effect a capital reorganization or reclassification of
its Capital Stock, or (e) enter into any other transaction similar to any of the
foregoing, then, and in the case of each such Triggering Event, the Issuer shall give the
Holder at least twenty (20) days prior notice of such Triggering Event. At any time after
receiving such a notice and prior to the Triggering Event the Holder may exercise this
Warrant pursuant to Section 2(b) and state in the election notice that such exercise
shall be subject to and conditioned upon the occurrence of the Triggering Event. Any such
exercise by the Holder shall be deemed to occur at the same time as the Triggering Event.
If the Holder does not exercise this Warrant pursuant to this Section 2(h), any
unexercised portion of this Warrant shall be deemed to have been exercised in full
pursuant to clause (ii) of Section 2(b) of this Warrant at the same time as the
Triggering Event without any action on the part of the Holder.
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(a) The Issuer represents, warrants, covenants and agrees that all shares of Warrant
Stock which may be issued upon the exercise of this Warrant, will, upon issuance, be duly
authorized, validly issued, fully paid and non-assessable and free from all taxes, liens
and charges created by or through the Issuer with respect to issuance (other than
restrictions under federal and state securities laws). The Issuer further covenants and
agrees that during the period within which this Warrant may be exercised, the Issuer will
at all times have authorized and reserved a sufficient number of shares of Common Stock
to provide for the exercise of this Warrant.
(b) If any shares of the Common Stock required to be reserved for
issuance upon exercise of this Warrant or as otherwise provided hereunder require
registration or qualification with any governmental authority under any federal or state
law before such shares may be so issued, the Issuer will in good faith use its best
efforts as expeditiously as possible at its expense to cause such shares to be duly
registered or qualified.
(c) The Issuer shall not by any action including, without limitation, amending the
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other action,
avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in
the taking of all such actions as may be necessary or appropriate to protect the rights of
the Holder hereof against impairment. Without limiting the generality of the foregoing,
without the consent of the Requisite Holders, the Issuer will (i) not permit the par
value, if any, of its Common Stock to exceed the then effective Warrant Price, (ii) take
all such action as may be reasonably necessary in order that the Issuer may validly and
legally issue fully paid and nonassessable shares of Common Stock, free and clear of any
liens, claims, encumbrances and restrictions (other than as provided herein and
restrictions under federal and state securities laws) created by or through Issuer with
respect to such issuance upon the exercise of this Warrant, and (iii) use its reasonable
best efforts to obtain all such authorizations, exemptions or consents from any public
regulatory body having jurisdiction thereof as may be necessary to enable the Issuer to
perform its obligations under this Warrant.
(d) The Issuer agrees that neither it nor its Affiliates will in the future issue
any press releases or other public disclosure, including any prospectus, proxy statement
or other materials filed with any governmental authority relating to a public offering of
the stock of the Issuer or any of its Subsidiaries, using the name of the Holder or its
Affiliates or referring to this Warrant without at least two (2) Business Days prior
notice to the Holder and without the prior written consent of the Holder unless (and only
to the extent that) the Issuer or its Affiliate is required to do so under law and then,
in any event, the Issuer or such Affiliate will consult with the Holder before issuing
such press release or other public disclosure.
4. Adjustment of Warrant Price and Warrant Share Number. The Warrant
Share Number and the Warrant Price shall be subject to adjustment from time to time
upon the happening of certain events, and the Holder hereof shall have additional
rights, as follows:
(a) Reserved.
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any additional consideration therefor, the amount and type of such cash, securities or property as
would have been payable to such Holder had such Holder been the Holder of record of such Warrant
Stock on the record date for such dividend or distribution or if no such record is taken, on the
date of such dividend or distribution; and appropriate provision therefor shall be made a part of
any such dividend or distribution.
(i) the numerator of which shall be equal to the number of
shares of Common Stock outstanding immediately after the issuance of such Additional Shares of
Common Stock; and
(ii) the denominator of which shall be equal to the sum of (A)
the number of shares of Common Stock outstanding immediately prior to the issuance of such
Additional Shares of Common Stock plus (B) the number of shares of Common Stock (rounded to
the nearest whole share) which the aggregate consideration for the total number of such Additional
Shares of Common Stock so issued would purchase at $3.00 per share.
The provisions of this Section 4(d) shall not apply under any of the circumstances for which an
adjustment is provided in Sections 4(a), 4(b) or 4(c). No adjustment of the Warrant Share Number
shall be made under this Section 4(d) upon the issuance of any Additional Shares of Common Stock
which are issued pursuant to any Common Stock Equivalent if any required adjustments shall have
been made pursuant to Section 4(e) or Section 4(f).
(i) Except as provided in clause (ii) of this Section 4(e), if
the Issuer, at any time while this Warrant is outstanding, shall issue any Common Stock Equivalent and
the price per share for which Additional Shares of Common Stock may be issuable thereafter pursuant
to such Common Stock Equivalent (determined by dividing (x) the price received upon issuance of
such Common Stock Equivalent plus the aggregate exercise price payable pursuant to the terms of
such Common Stock Equivalent by (y) the maximum number of Additional Shares of Common Stock
issuable pursuant to such Common Stock Equivalent, whether or not such Common Stock Equivalent is
actually then exercisable, convertible or exchangeable in whole or in part, as of the date of such
issuance) shall be less than $3.00, then the Warrant Share Number upon each such issuance shall be
adjusted as provided in the first sentence of Section 4(d) on the basis that (1) the maximum number
of Additional Shares of Common Stock issuable pursuant to all such Common Stock Equivalents shall
be deemed to have been issued (whether or not such Common Stock Equivalents are actually then
exercisable, convertible or exchangeable
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in whole or in part) as of the date of such issuance, and (2) the aggregate consideration for
such maximum number of Additional Shares of Common Stock shall be deemed to be the
consideration received upon issuance of such Common Stock Equivalent plus the aggregate
exercise price payable pursuant to the terms of such Common Stock Equivalent.
(ii) If the Issuer, no later than 30 days after the Closing Date,
shall issue shares of its Series B Preferred Stock, the Warrant Share Number upon each such
issuance shall be increased by 12% of the number of shares of Series B Preferred Stock so
issued.
(iii) No adjustment of the Warrant Share Number shall be made
under this Section 4(e) upon the issuance of any Convertible Security which is issued pursuant
to the exercise of any warrants or other subscription or purchase rights therefor, if any
adjustment shall previously have been made in the Warrant Share Number then in effect upon the
issuance of such warrants or other rights pursuant to this Section 4(e).
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whole or in part) as of the date of such Adjustment Event and after giving effect thereto, and (2)
the aggregate consideration for such maximum number of Additional Shares of Common Stock shall be
deemed to be the consideration, if any, paid to the Issuer to effect such Adjustment Event.
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Common Stock Equivalent shall not have been converted, exercised or exchanged in its entirety, the
number of shares of Common Stock deemed to be issued and outstanding by reason of the fact that
they were issuable upon conversion, exchange or exercise of any such Common Stock Equivalent shall
no longer be computed as set forth above, and the Warrant Share Number shall forthwith be
readjusted and thereafter be the number which it would have been (but reflecting any other
adjustments in the Warrant Share Number made pursuant to the provisions of this Section 4 after the
issuance of such Common Stock Equivalent) had the adjustment of the Warrant Share Number been made
in accordance with the issuance or sale of the number of Additional Shares of Common Stock actually
issued upon conversion, exchange or issuance of such Common Stock Equivalent and thereupon only the
number of Additional Shares of Common Stock actually so issued shall be deemed to have been issued
and only the consideration actually received by the Issuer (computed as in clause (i) of this
Section 4(h)) shall be deemed to have been received by the Issuer.
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hereunder in the event of an exercise of this Warrant at such time in whole or in part shall be an
amount equal to the par value per share of such Warrant Stock.
5.
Notice of Adjustments. Whenever the Warrant Price or Warrant Share Number shall be
adjusted pursuant to Section 4 hereof (for purposes of this Section 5, an “adjustment”), the Issuer
shall cause its Chief Financial Officer to prepare and execute a certificate setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated (including a description of the basis on which the Board made
any determination hereunder), and the Warrant Price and Warrant Share Number after giving effect to
such adjustment, and shall cause copies of such certificate to be delivered to the Holder of this
Warrant promptly after each adjustment. Any dispute between the Issuer and the Holder of this
Warrant with respect to the matters set forth in such certificate may at the option of the
Requisite Holders of this Warrant be submitted to an independent accounting firm not then regularly
engaged by the Issuer chosen by the Issuer and reasonably acceptable to the Requisite Holders,
which firm shall deliver a written opinion as to such matters to the Issuer and the Holders within
thirty days after submission to it of such dispute. Such opinion shall be final and binding on the
parties hereto. The fees and expenses of such accounting firm shall be paid by the Issuer.
6.
Fractional Shares. No fractional shares of Warrant Stock will be issued in
connection with any exercise hereof, but in lieu of such fractional shares, the Issuer shall make a
cash payment therefor equal in amount to the fair market value of such fractional shares.
7.
Definitions. For the purposes of this Warrant, the following terms have the
following meanings:
“Additional
Shares of Common Stock” means all shares of Common Stock issued by the
Issuer after the Closing Date, and all shares of Other Common, if any, issued by the Issuer after
the Closing Date, except (i) the Warrant Stock, (ii) shares of Common Stock issued or issuable upon
conversion of shares of Series A Preferred Stock or Series B Preferred Stock outstanding on the
Closing Date, (iii) shares of Common Stock issued or issuable upon exercise of employee stock
options outstanding on the Closing Date, (iv) shares of Common Stock issued or issuable upon
exercise of options and warrants to purchase Common Stock which are outstanding on the Closing
Date, (v) shares of Common Stock issued or deemed issued after the Closing Date to officers,
directors, consultants, advisors or employees of the Issuer, pursuant to a stock grant, option or
purchase plan or other employee stock incentive program or arrangement approved by a two-thirds
majority of the Board, plus any shares repurchased by the Issuer from such persons, (vi) all shares
of Common Stock issued or deemed issued after the Closing Date in connection with research and
development partnerships, licensing or collaborative arrangements, borrowings from financial
institutions, equipment financing and similar transactions approved by a two-thirds majority of the
Board, and (vii) all shares of Common Stock issuable upon exercise of other options or warrants
issued and outstanding on the Closing Date.
“Affiliate” means, with respect to any Person, (a) each Person that, directly or indirectly,
owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, 5% or more of
the Voting Stock of such Person, (b) each Person that controls, is controlled by or is under common
control with such Person, (c) each of such Person’s officers, directors, joint
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venturers and partners and (d) in the case of the Issuer, the immediate family members, spouses and
lineal descendants of individuals who are Affiliates of the Issuer. For the purposes of this
definition, “control” of a Person shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of its management or policies, whether through the ownership of
voting securities, by contract or otherwise.
“Board” shall mean the Board of Directors of the Issuer.
“Business
Day” means any day except a Saturday, a Sunday or a legal holiday in New York City.
“Capital
Stock” means and includes (i) any and all shares, interests, participations or other
equivalents of or interests in (however designated) corporate stock, including, without limitation,
shares of preferred or preference stock, (ii) all partnership interests (whether general or
limited) in any Person which is a partnership, (iii) all membership interests or limited liability
company interests in any limited liability company, and (iv) all equity or ownership interests in
any Person of any other type.
“Certificate
of Incorporation” means the Certificate of Incorporation of the Issuer as
in effect on the Closing Date, and as hereafter from time to time amended, modified, supplemented
or restated in accordance with its terms and pursuant to applicable law.
“Closing
Date” means December 9, 2003.
“Common
Stock” means the Common Stock and any other Capital Stock into which such stock may
hereafter be changed.
“Common
Stock Equivalent” means any Convertible Security or warrant, option or other
right to subscribe for or purchase any Additional Shares of Common Stock or any Convertible
Security or any stock appreciation right or other right to receive any payment based upon the value
of the Common Stock or Other Common Stock.
“Convertible
Securities” means evidences of indebtedness, shares of Capital Stock or
other Securities (including the Series A Preferred Stock and Series B Preferred Stock) which are or
may be at any time convertible into or exchangeable for Additional Shares of Common Stock. The term
“Convertible Security” means one of the Convertible Securities.
“Current
Market Price” as in effect on any day means the average of the daily market
prices of the Common Stock for the period of 30 consecutive trading days ending three trading days
preceding such date. The market price for each such day shall be the last sale price on such day as
reported on the New York Stock Exchange Consolidated Tape, or, if the Common Stock is not listed on
the New York Stock Exchange, Inc. or reported on such Consolidated Tape, then the last sale price
on such day on the principal domestic stock exchange on which such Common Stock is then listed or
admitted to trading, or, if no sale takes place on such day on such exchange, the average of the
closing bid and asked prices on such day as officially quoted on such exchange, or, if the Common
Stock is not then listed or admitted to trading on any domestic stock exchange but is quoted in the
Nasdaq Stock Markets National Market System (“NMS/NASDAQ”) of the National Association of
Securities Dealers, Inc. Automated Quotation
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System (“NASDAQ”), then the Current Market Price for each such trading day shall be the last sale
price on such day as quoted by NMS/NASDAQ, or, if no sale takes place on such day or if the Common
Stock is neither listed or admitted to trading on any domestic stock exchange nor quoted on such
NMS/NASDAQ, then the Current Market Price for each such trading day shall be the average of the
reported closing bid and asked price quotations on such day in the over-the-counter market, as
reported by NASDAQ, or, if not so reported, as furnished by the National Quotation Bureau, Inc., or
if such firm at the time is not engaged in the business of reporting such prices, as furnished by
any similar firm then engaged in such business as selected by the Issuer, or if there is no such
firm, as furnished by any member of the National Association of Securities Dealers, Inc. selected
by the Issuer with the written approval of the Requisite Holders (which approval shall not be
unreasonably withheld). If at any time such Common Stock is not listed on any domestic exchange or
quoted in the domestic over-the-counter market, the Current Market Price shall be deemed to be the
fair market value per share of such Common Stock as determined in good faith by the Board by notice
to the Requisite Holders, provided that if the determination of “Current Market Price” is being
made immediately prior to the effectiveness of the Company’s initial public offering of Common
Stock, the “Current Market Price” shall mean the “price to public” per share specified in the final
prospectus relating to that offering. In determining the fair market value of any shares of Common
Stock, no consideration shall be given to any restrictions on transfer of the Common Stock imposed
by agreement or by federal or state securities laws, or to the existence or absence of, or any
limitations on, voting rights, or to minority or non-control
ownership positions. In the event that
the Requisite Holders challenge the determination of Current Market Price by the Board with another
proposed market price for each share of Common Stock, and independent appraiser selected by the
board of directors of the Issuer shall determine the Current Market Price, and the Issuer shall
bear the cost of such appraisal only if the difference between its challenged Current Market Price
and the one determined by the independent appraiser is greater than that between the market price
proposed by the Requisite Holders and the one determined by the independent appraiser; otherwise,
the Requisite Holders shall bear the cost of such appraisal.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any similar federal
statute at the time in effect.
“Holders” mean the Persons who shall from time to time own any Warrant. The term “Holder”
means one of the Holders.
“Independent
Appraiser” means a nationally recognized investment banking firm or other
nationally recognized firm, in each case, that is regularly engaged in the business of appraising
the Capital Stock or assets of corporations or other entities as going concerns, and which is not
affiliated with either the Issuer or the Holder of any Warrant.
“Issuer” has the meaning specified in the first paragraph hereof.
“Other
Common” means any Capital Stock of the Issuer of any class which shall be authorized at
any time after the date of this Warrant (other than Common Stock) and which shall have the right to
participate in the distribution of earnings and assets of the Issuer without limitation as to
amount.
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“Person” means an individual, a corporation, a partnership, a trust, a limited
liability company, an unincorporated organization or a government organization or an
agency or political subdivision thereof.
“Qualified
Public Offering” means the closing of a firm commitment
underwritten public offering pursuant to an effective registration statement under the
Securities Act, covering the offer and sale of Common Stock in which (1) the public
offering price equals or exceeds $10.00 per share (adjusted to reflect subsequent
stock dividends, stock splits or recapitalization) and (2) the aggregate gross
offering proceeds (before underwriters discounts and commissions and before expenses)
equals or exceeds $50 million.
“Requisite
Holders” means at any time the Holders of Warrants (other than
the Issuer or any Subsidiary thereof) exercisable for a majority of the shares of
Warrant Stock issuable under the Warrants at the time outstanding.
“Securities” means any debt or equity securities of the Issuer, whether now or
hereafter authorized, any instrument convertible into or exchangeable for Securities
or a Security, and any option, warrant or other right to purchase or acquire any
Security. “Security” means one of the Securities.
“Series B
Preferred Stock” means the Issuer’s Series B Preferred Stock
having the terms provided in the Certificate of Incorporation as of the Closing Date.
“Securities
Act” means the Securities Act of 1933, as amended, or any similar
federal statute then in effect.
“Subsidiary” means any corporation at least 50% of whose outstanding Voting Stock
shall at the time be owned directly or indirectly by the Issuer or by one or more of
its Subsidiaries, or by the Issuer and one or more of its Subsidiaries.
“Voting
Stock”, any class or classes (however designated) of capital stock having
ordinary voting power for the election of a majority of the members of the Board (or
other governing body) of the corporation, other than Capital Stock having such power
only by reason of the happening of a contingency.
“Warrants” means this Warrant and any other warrants of like tenor issued in
substitution or exchange for any thereof pursuant to the provisions of Section 2(c) or
2(d) hereof or of any of such other Warrants.
“Warrant
Price” means the exercise price per share of Common Stock specified in
the first paragraph of this Warrant and such other exercise prices as shall result
from the adjustments specified in Section 4 hereof.
“Warrant
Share Number” means at any time the aggregate number of shares
of Warrant Stock which may at such time be purchased upon exercise of this Warrant,
after giving effect to all prior adjustments to such number made or required to be
made under the terms hereof.
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“Warrant
Stock” means Common Stock issuable upon exercise of any Warrant or Warrants or
otherwise issuable pursuant to any Warrant or Warrants.
8.
Information. The Issuer shall deliver to the Holder hereof and to each holder of shares of
Warrant Stock the documents and other information required under
Article 6 of the Note and Warrant
Purchase Agreement, dated as of the Closing Date, among the Issuer, the guarantors signatory
thereto, FFC Partners II, L.P. and FFC Executive Partners II, L.P. within the applicable time
period specified therein and regardless of whether or not that Agreement is then in effect.
9.
Amendment and Waiver. Any term, covenant, agreement or condition in this Warrant
may be amended, or compliance therewith may be waived (either generally or in a particular instance
and either retroactively or prospectively), by a written instrument or written instruments executed
by the Issuer and the Requisite Holders; provided, however, that no such amendment or
waiver shall reduce the Warrant Share Number, increase the Warrant Price, shorten the period during
which this Warrant may be exercised, change the manner of payment of the Warrant Price or modify
any provision of this Section 9 without the consent of the Holder of this Warrant.
10.
Governing Law. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES THEREOF.
11.
Notices. All notices and other communications provided for hereunder shall be in
writing and delivered by hand or sent by first class registered mail, return receipt requested, or
sent by telecopy (with such telecopy to be confirmed promptly in writing sent by first class
registered mail, return receipt requested), and if to the Holder of this Warrant or of Warrant
Stock issued pursuant hereto, addressed to such Holder at its last known address or telecopy number
appearing on the books of the Issuer maintained for such purposes, and if to the Issuer, addressed
to:
Volcano Therapeutics, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Facsimile: 000-000-0000
0000 Xxxxxxx Xxxx
Xxxxxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Facsimile: 000-000-0000
or to such other address or addresses or telecopy number or numbers as any such party may most
recently have designated in writing to the other parties hereto by such notice. All such
communications shall be deemed to have been given or made when so delivered by hand, upon actual
receipt if sent by telecopy, or three business days after being so mailed.
12.
Remedies. The Issuer stipulates that the remedies at law of the Holder of this
Warrant in the event of any default or threatened default by the Issuer in the performance of or
compliance with any of the terms of this Warrant are not and will not be adequate and that, to the
fullest extent permitted by law, such terms may be specifically enforced by a decree for the
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specific performance of any agreement contained herein or by an injunction against a violation of
any of the terms hereof or otherwise. Time is of the essence in this Warrant.
13.
Successors and Assigns. This Warrant and the rights evidenced hereby shall inure
to the benefit of and be binding upon the successors and assigns of the Issuer, the Holder hereof
and (to the extent provided herein) the Holders of Warrant Stock issued pursuant hereto, and shall
be enforceable by any such Holder or Holder of Warrant Stock.
14.
Modification and Severability. If, in any action before any court or agency
legally empowered to enforce any provision contained herein, any provision hereof is found to be
unenforceable, then such provision shall be deemed modified to the extent necessary to make it
enforceable by such court or agency. If any such provision is not enforceable as set forth in the
preceding sentence, the unenforceability of such provision shall not affect the other provisions of
this Warrant, but this Warrant shall be construed as if such unenforceable provision had never been
contained herein.
15.
Integration. This Warrant replaces all prior agreements, supersedes all prior
negotiations and constitutes the entire agreement of the parties with respect to the transactions
contemplated herein.
16.
Headings. The headings of the Sections of this Warrant are for convenience of
reference only and shall not, for any purpose, be deemed a part of this Warrant.
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VOLCANO THERAPEUTICS, INC. | ||||||||
By: | /s/ Xxxxx Xxxxxxxxxx | |||||||
Name: | Xxxxx Xxxxxxxxxx | |||||||
Title: | President & CEO |
EXERCISE FORM
[ ]
The undersigned hereby irrevocably elects to exercise the right to purchase
represented by the attached Warrant for, and to purchase thereunder,
shares of
Common Stock, par value $.01 per share (the “Common
Stock”), of Volcano Therapeutics, Inc. (the
“Issuer”), as provided for therein, and tenders herewith payment of the Warrant Price in full in
accordance with the terms of the attached Warrant.
Please issue a certificate or certificates for such shares of Common Stock in the following
name or names and denominations:
If said number of shares of Common Stock shall not be all the shares of Common Stock issuable
upon exercise of the attached Warrant, a new Warrant is to be issued in the name of the undersigned
for the balance remaining of such shares of Common Stock less any fraction of a share of Common
Stock paid in cash.
Dated:
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby sells,
assigns and transfers unto the within Warrant and all rights evidenced
thereby and does irrevocably constitute and appoint , attorney, to transfer the
said Warrant on the books of the within named corporation.
Dated:
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PARTIAL ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby sells,
assigns and transfers unto
the right to purchase shares of the
Common Stock issuable upon exercise of the attached Warrant, and does irrevocably constitute
and appoint , attorney, to transfer that part of the said Warrant on the
books of the within named corporation.
Dated:
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FOR USE BY THE ISSUER ONLY:
This
Warrant No. W-___ cancelled (or transferred or
exchanged) this ___ day of , 20_,
shares of Common Stock issued therefor in the name of , Warrant No.
W- ___ issued for ___ shares of Common Stock in the name of
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