Exhibit 4.5
STOCK PURCHASE WARRANT
To Purchase Shares of Common Stock of
VIDAMED, INC.
THIS CERTIFIES that, for value received, [Name] (the "Investor Holder"), is
entitled, upon the terms and subject to the conditions hereinafter set forth, at
any time on or prior to the close of business on the date three (3) years after
the date hereof, but not thereafter, to subscribe for and purchase, from
VIDAMED, INC. a Delaware corporation (the "Company"), [Shares] shares (the
"Warrant Shares") of Common Stock. The purchase price of one share of Common
Stock under this Warrant shall be $[price] (the "Exercise Price") per share.
The purchase price and the number of shares for which the Warrant is exercisable
shall be subject to adjustment as provided herein.
1. Transfer of Warrant. Prior to the expiration hereof and subject to
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compliance with applicable laws, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the Company,
referred to in Section 2 hereof, by the holder hereof in person or by duly
authorized attorney, upon surrender of this Warrant together with the Assignment
Form annexed hereto properly endorsed.
2. Exercise of Warrant.
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(a) The purchase rights represented by this Warrant are exercisable by the
registered holder hereof, in whole or in part, at any time before the close of
business on the date three (3) years after the date hereof, by delivery of the
Notice of Exercise form annexed hereto duly executed at the office of the
Company, in Fremont, California (or such other office or agency of the Company
as it may designate by notice in writing to the registered holder hereof at the
address of such holder appearing on the books of the Company), and upon payment
of the purchase price of the shares thereby purchased (by cash or by check or
bank draft payable to the order of the Company); whereupon the holder of this
Warrant shall be entitled to receive a certificate for the number of shares of
Common Stock so purchased. The Company agrees that if at the time of the
surrender of this Warrant and purchase of shares, the holder hereof shall be
entitled to exercise this Warrant, the shares so purchased shall be and be
deemed to be issued to such holder as the record owner of such shares as of the
close of business on the date on which this Warrant shall have been exercised as
aforesaid. If this Warrant should be exercised in part only, the Company shall,
upon surrender of this Warrant, execute and deliver a new Warrant evidencing the
rights of the holder hereof to purchase the balance of the Warrant Shares
purchasable hereunder.
(b) Certificates for shares purchased hereunder shall be delivered to the
holder hereof promptly after this Warrant shall have been exercised as
aforesaid. The Company covenants that all shares of Common Stock which may be
issued upon the exercise of rights represented by this Warrant will, upon
exercise of the rights represented by this Warrant, be fully
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paid and nonassessable and free from all taxes, liens and charges in respect of
the issue thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue).
3. No Fractional Shares or Scrip. No fractional shares or scrip
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representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for upon the exercise of
this Warrant, an amount equal to such fraction multiplied by the then fair
market value shall be paid in cash to the holder of this Warrant.
4. Charges, Taxes and Expenses. Issuance of certificates for shares of
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Common Stock upon the exercise of this Warrant shall be made without charge to
the holder hereof for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificate, all of which taxes and expenses
shall be paid by the Company, and such certificates shall be issued in the name
of the holder of this Warrant or in such name or names as may be directed by the
holder of this Warrant; provided, however, that in the event certificates for
shares of Common Stock are to be issued in a name other than the name of the
holder of this Warrant, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the holder
hereof.
5. No Rights as Shareholders. This Warrant does not entitle the holder
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hereof to any voting rights or other rights as a stockholder of the Company
prior to the exercise thereof.
6. Exchange and Registry of Warrant. This Warrant is exchangeable,
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without charge, upon the surrender hereof by the registered holder at the above-
mentioned office or agency of the Company, for a new Warrant of like tenor and
dated as of such exchange.
The Company shall maintain at the above-mentioned office or agency a
registry showing the name and address of the registered holder of this Warrant.
This Warrant may be surrendered for exchange, transfer or exercise, in
accordance with its terms, at such office or agency of the Company, and the
Company shall be entitled to rely in all respects, prior to written notice to
the contrary, upon such registry.
7. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the
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Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and
cancellation of this Warrant, if mutilated, the Company will make and deliver a
new Warrant of like tenor and dated as of such cancellation, in lieu of this
Warrant.
8. Saturdays, Sundays, Holidays, etc. If the last or appointed day for
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the taking of any action or the expiration of any right required or granted
herein shall be a Saturday or a Sunday or shall be a legal holiday, then such
action may be taken or such right may be exercised on the next succeeding day
not a Saturday, Sunday or legal holiday.
9. Early Termination, Antidilution Adjustments and Registration Statement
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Adjustments.
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(a) Merger, Sale of Assets, etc. In case of any consolidation of the
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Company with, or merger of the Company into, any other corporation (other than a
consolidation or merger in which the Company is the continuing corporation and
in which no change occurs in its
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outstanding Common Stock), or in case of any sale or transfer of all or
substantially all of the assets of the Company, or in the case of any statutory
exchange of securities with another corporation (including any exchange effected
in connection with a merger of a third corporation into the Company, except
where the Company is the surviving entity and no change occurs in its
outstanding Common Stock), the corporation formed by such consolidation or the
corporation resulting from or surviving such merger or the corporation which
shall have acquired such assets or securities of the Company, as the case may
be, shall execute and deliver to the Holder simultaneously therewith a new
Warrant, satisfactory in form and substance to the Holder, together with such
other documents as the Holder may reasonably request, entitling the Holder
thereof to receive upon exercise of such Warrant the kind and amount of shares
of stock and other securities and property receivable upon such consolidation,
merger, sale, transfer, or exchange of securities, or upon the dissolution
following such sale or other transfer, by a holder of the number of shares of
Common Stock purchasable upon exercise of this Warrant immediately prior to such
consolidation, merger, sale, transfer, or exchange. Such new Warrant shall
contain the same basic other terms and conditions as this Warrant and shall
provide for adjustments which, for events subsequent to the effective date of
such written instrument, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section 9. The above provisions of this
Section 9(a) shall similarly apply to successive consolidations, mergers,
exchanges, sales or other transfers covered hereby. Notwithstanding the
foregoing, in the event the consideration to be paid to holders of Company
capital stock in any transaction of the nature referred to above in this Section
9(a) (a "Transaction") consists of cash or cash equivalents, then, provided that
the Company shall have given the holder hereof the notice required by Section
10, this Warrant shall, to the extent it has not been exercised by the effective
date of such Transaction, terminate upon the completion of such Transaction.
(b) Reclassification, etc. If the Company at any time shall, by
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subdivision, combination or reclassification of securities or otherwise, change
any of the securities to which purchase rights under this Warrant exist into the
same or a different number of securities of any class or classes, this Warrant
shall thereafter represent the right to acquire such number and kind of
securities as would have been issuable as the result of such change with respect
to the securities which were subject to the purchase rights under this Warrant
immediately prior to such subdivision, combination, reclassification or other
change. If shares of the Company's Common Stock are subdivided or combined into
a greater or smaller number of shares of Common Stock, the purchase price under
this Warrant shall be proportionately reduced in the case of a subdivision of
shares or proportionately increased in the case of a combination of shares, in
both cases by the ratio which the total number of shares of Common Stock to be
outstanding immediately after such event bears to the total number of shares of
Common Stock outstanding immediately prior to such event.
(c) Cash Distributions. Except as set forth herein, no adjustment on
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account of cash dividends on the Company's Common Stock or other securities
purchasable hereunder will be made to the purchase price under this Warrant.
(d) Authorized Shares. The Company covenants that during the period the
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Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of Common Stock
upon the exercise of any purchase rights under this Warrant. The Company further
covenants that its issuance of this
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Warrant shall constitute full authority to its officers who are charged with the
duty of executing stock certificates to execute and issue the necessary
certificates for shares of the Company's Common Stock upon the exercise of the
purchase rights under this Warrant. The Company further covenants and agrees (i)
that it will not, by amendment of its Certificate of Incorporation or through
reorganization, consolidation, merger, dissolution or sale of assets, or by any
other voluntary act, avoid or seek to avoid the observation or performance of
any of the covenants, stipulations or conditions to be observed or performed
hereunder by the Company, (ii) promptly to take such action as may be required
of the Company to permit the Holder to exercise this Warrant and the Company
duly and effectively to issue shares of its Common Stock or other securities as
provided herein upon the exercise hereof and (iii) promptly to take all action
required or provided herein to protect the rights of the Holder granted
hereunder against dilution.
(e) If the Company declares a dividend on Common Stock, or makes a
distribution to holders of Common Stock, and such dividend or distribution is
payable or made in Common Stock or securities convertible into or exchangeable
for Common Stock, or rights to purchase Common Stock or securities convertible
into or exchangeable for Common Stock, the number of shares of Common Stock for
which this Warrant may be exercised shall be increased, as of the record date
for determining which holders of Common Stock shall be entitled to receive such
dividend or distribution, in proportion to the increase in the number of
outstanding shares (and shares of Common Stock issuable upon conversion of all
such securities convertible into Common Stock) of Common Stock as a result of
such dividend or distribution, and the Exercise Price shall be adjusted so that
the aggregate amount payable for the purchase of all the Warrant Shares issuable
hereunder immediately after the record date for such dividend or distribution
shall equal the aggregate amount so payable immediately before such record date.
(f) If the Company declares a dividend on Common Stock (other than a
dividend covered by subsection (e) above) or distributes to holders of its
Common Stock, other than as part of its dissolution or liquidation or the
winding up of its affairs, any shares of its capital stock, any evidence of
indebtedness or any cash or other of its assets (other than Common Stock or
securities convertible into or exchangeable for Common Stock), the Holder shall
receive notice of such event as set forth in Section 10 below.
(g) If the Company shall, at any time before the expiration of this
Warrant, sell all or substantially all of its assets and distribute the proceeds
thereof to the Company's stockholders, the Holder shall, upon exercise of this
Warrant have the right to receive, in lieu of the shares of Common Stock of the
Company that the Holder otherwise would have been entitled to receive, the same
kind and amount of assets as would have been issued, distributed or paid to the
Holder upon any such distribution with respect to such shares of Common Stock of
the Company had the Holder been the holder of record of such shares of Common
Stock receivable upon exercise of this Warrant on the date for determining those
entitled to receive any such distribution. If any such distribution results in
any cash distribution in excess of the Exercise Price provided by this Warrant
for the shares of Common Stock receivable upon exercise of this Warrant, the
Holder may, at the Holder's option, exercise this Warrant without making payment
of the Exercise Price and, in such case, the Company shall, upon distribution to
the Holder, consider the Exercise Price to have been paid in full and, in making
settlement to the Holder, shall obtain receipt of the Exercise Price by
deducting an amount equal to the Exercise Price for the shares of Common Stock
receivable upon exercise of this Warrant from the amount payable
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to the Holder. Notwithstanding the foregoing, in the event the consideration to
be paid to holders of Company capital stock in any transaction of the nature
referred to above in this Section 9(i) (an "Asset Sale Transaction") consists of
cash or cash equivalents and the consideration payable per share of Common Stock
of the Company is less than the Exercise Price hereunder, then, provided that
the Company shall have given the holder hereof the notice required by Section
10, this Warrant shall, to the extent it has not been exercised by the effective
date of such Transaction, terminate upon the completion of such Transaction.
(h) The term "Common Stock" shall mean the Common Stock of the Company as
the same exists at September ____, 1999 or as such stock may be constituted from
time to time, except that for the purpose of this Section 9, the term "Common
Stock" shall include any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
(i) Whenever the number of Warrant Shares or the Exercise Price shall be
adjusted as required by the provisions of this Section 9, the Company forthwith
shall file in the custody of its secretary or an assistant secretary, at its
principal office, and furnish to each Holder hereof, a certificate prepared by
its Chief Financial Officer, showing the adjusted number of Warrant Shares and
the adjusted Exercise Price and setting forth in reasonable detail the
circumstances requiring the adjustments.
(j) No adjustment in the Exercise Price in accordance with the provisions
of this Section 9 need be made if such adjustment would amount to a change in
such Exercise Price of less than $.01; provided however, that the amount by
which any adjustment is not made by reason of the provisions of this Section
9(j) shall be carried forward and taken into account at the time of any
subsequent adjustment in the Exercise Price.
(k) If an adjustment is made under this Section 9 and the event to which
the adjustment relates does not occur, then any adjustments in accordance with
this Section 9 shall be readjusted to the Exercise Price and the number of
Warrant Shares which would be in effect had the earlier adjustment not been
made.
(l) If the Exercise Price exceeds $_____ for ten consecutive trading days,
the Company can require the holder of this Warrant to exercise this Warrant by
providing written notice to such holder. After delivery of such notice, the
holder of this Warrant shall have twenty days to exercise this Warrant.
Thereafter, this Warrant shall be terminated and shall no longer be exercisable.
10. Notice of Adjustment. So long as this Warrant shall be outstanding,
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(a) if the Company shall propose to pay any dividends or make any distribution
upon the Common Stock, or (b) if the Company shall offer generally to the
holders of Common Stock the right to subscribe to or purchase any shares of any
class of Common Stock or securities convertible into Common Stock or any other
similar rights, or (c) if there shall be any proposed capital reorganization of
the Company in which the Company is not the surviving entity, recapitalization
of the capital stock of the Company, consolidation or merger of the Company with
or into another corporation, sale, lease or other transfer of all or
substantially all of the property and assets of the Company,
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or voluntary or involuntary dissolution, liquidation or winding up of the
Company, or (d) if the Company shall give to its stockholders any notice, report
or other communication respecting any significant or special action or event,
then in such event, the Company shall give to the Holder, at least ten (10) days
prior to the relevant date described below, a notice containing a description of
the proposed action or event and stating the date or expected date on which a
record of the Company's stockholders is to be taken for any of the foregoing
purposes, and the date or expected date on which any such dividend,
distribution, subscription, reclassification, reorganization, consolidation,
combination, merger, conveyance, sale, lease or transfer, dissolution,
liquidation or winding up is to take place and the date or expected date, if any
is to be fixed, as of which the holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such event.
11. Notice. Any notice to be given or to be served upon any party in
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connection with the Warrant must be in writing and will be deemed to have been
given and received upon confirmed receipt, if sent by facsimile, or two (2) days
after it has been submitted for delivery by Federal Express or an equivalent
carrier, charges prepaid and addressed to the following addresses with a
confirmation of delivery:
If to the Company, to:
VidaMed, Inc.
00000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Holder, to:
[Name/Address]
Any party may, at any time by giving written notice to the other party,
designate any other address in substitution of an address established pursuant
to the foregoing to which such notice will be given.
12. Miscellaneous.
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(a) Issue Date. The provisions of this Warrant shall be construed and
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shall be given effect in all respect as if it had been issued and delivered by
the Company on the date hereof. This Warrant shall be binding upon any
successors or assigns of the Company.
(b) Restrictions. The holder hereof acknowledges that the Common
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Stock acquired upon the exercise of this Warrant may have restrictions upon its
resale imposed by state and federal securities laws.
(c) Governing Law. This Agreement shall be governed in all respects
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by and construed in accordance with the laws of the State of Delaware without
regard to any conflicts of laws principles.
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(d) Successors and Assigns. Except as otherwise contemplated hereby,
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this Warrant shall be binding upon and inure to the benefit of any successors
and assigns of the Company.
IN WITNESS WHEREOF, VIDAMED, INC. has caused this Warrant to be executed by
its officers thereunto duly authorized.
Dated:_________, _____
VIDAMED, INC.
By:___________________________
Title:________________________
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NOTICE OF EXERCISE
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To: VIDAMED, INC.
(1) The undersigned hereby elects to purchase ____________ shares of
Common Stock of VIDAMED, INC. pursuant to the terms of the attached Warrant, and
tenders herewith payment of $__________ in full satisfaction of the purchase
price.
(2) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
_______________________________________________
(Name)
_______________________________________________
_______________________________________________
(Address)
(3) The undersigned represents that the aforesaid shares of Common Stock
are being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling such
shares; provided, that such representation shall not be required at such time as
the shares of Common Stock underlying this Warrant are registered under the
Securities Act of 1933.
_____________________________ ___________________________
(Date) (Signature)
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ASSIGNMENT FORM
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(To assign the foregoing Warrant, execute
this form and supply required information.
Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
______________________________________________________________________________
(Please Print)
whose address is _____________________________________________________________
(Please Print)
______________________________________________________________________________
Dated: _____________________, 19____.
Holder's Signature: _________________________________
Holder's Address: __________________________________
____________________________________________________
Signature Guaranteed:___________________________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
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