Contract
Exhibit 4.10
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 REASONABLY SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE STOCK
Company:
|
ZONARE MEDICAL SYSTEMS, INC., a Delaware corporation | |
Number of Shares:
|
$800,000/Warrant Price | |
Class of Stock:
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Series G Preferred | |
Warrant Price:
|
lesser of (i) $0.85939 per share or (ii) the price per share in the next non- public equity financing after the Issue Date in which the Company receives at least $1,000,000 | |
Issue Date:
|
August 28, 2008 | |
Expiration Date:
|
The 7th anniversary after the Issue Date, except as provided herein | |
Credit Facility:
|
This Warrant is issued in connection with the Loan and Security Agreement between Company and Silicon Valley Bank and Oxford Finance Corporation dated as of August 28, 2008, as amended from time to time (the “Loan Agreement”). |
THIS WARRANT CERTIFIES THAT, for good and valuable consideration, including without limitation
the mutual promises contained in the Loan Agreement OXFORD FINANCE CORPORATION (together with any
registered holder from time to time of this Warrant or any holder of the shares issuable or issued
upon exercise of this Warrant, “Holder”) is entitled to purchase the number of fully paid and
nonassessable shares of the class of securities (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.
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 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, Holder
may from time to time convert this Warrant, in whole or in part, into a number of Shares determined
by dividing (a) the aggregate fair market value of the
Shares or other securities otherwise issuable upon exercise of this Warrant minus the
aggregate Warrant Price of such Shares by (b) the fair market value of one Share. 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 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.
1.6 Holder’s Obligations re Shares. As to any Shares Holder
receives upon any exercise or conversion of this Warrant, the Holder agrees to
be bound by the Amended and Restated Voting Agreement dated as of February 26,
2007 among the Company and the stockholders named therein, as amended from
time to time.
1.7 Treatment of Warrant Upon Acquisition of Company.
1.7.1 “Acquisition”. For the purpose of this Warrant, “Acquisition” means any sale, exclusive
license other than in the ordinary course of business, or other disposition of all or substantially
all of the assets of the Company, or any reorganization, consolidation, or merger of the Company
where the holders of the Company’s securities before the transaction beneficially own less than 50%
of the outstanding voting securities of the surviving entity after the transaction.
1.7.2 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
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the foregoing (together with such reasonable information as the Holder may reasonably 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 reasonably 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 stock
for stock Acquisition of the Company by a publicly traded acquirer 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 the Warrant Price, Company may
require the Warrant to be deemed automatically exercised and the Holder shall participate
in 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.
D) Upon the closing of any Acquisition other than those particularly described in
subsections (A), (B) and (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.
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.
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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 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. 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 for the Shares in the Company’s Certificate of
Incorporation relating to the above in effect as of the Issue Date may not be
amended, modified or waived by the Company or any requisite stockholder
majority, 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 (without taking into account the particular
circumstances of any Holder). The foregoing notwithstanding, the Company may
amend its Certificate of Incorporation with the requisite consent of the
holders of the Company’s preferred stock or such holders may waive their
rights thereunder, so long as such amendment or waiver does not affect the
Shares in a manner materially and adversely different from the effect that
such amendments or waivers have generally on the rights, preferences, privileges or restrictions of the other shares of the same series of stock (without taking into
account the particular circumstances of any Holder).
2.4 No Impairment. The Company shall not, by amendment of its Certificate of Incorporation or
through a reorganization, transfer of assets, consolidation, merger, dissolution, issue, or sale of
securities or any other voluntary action, except and to the extent waived or consented to in
writing by Holder, or as otherwise specifically permitted under the terms hereof, 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. The foregoing notwithstanding, the
Company shall not be deemed to have impaired Holder’s rights if it amends its Certificate of
Incorporation with the requisite consent of the holders of the Company’s preferred stock or such
holders waive their rights thereunder, and such amendments or waivers do not affect the Shares in a
manner materially and adversely different
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from the effect that such amendments or waivers have generally on the rights, preferences,
privileges or restrictions of the other shares of the same series of stock (without taking into
account the particular circumstances of any Holder).
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.
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 and covenants 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 Shares 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’s capitalization table attached
hereto as Schedule 1 is true and complete as of the Issue Date.
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 offer for sale any shares of the Company’s capital
stock (or other securities 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; (c) to effect any reclassification or recapitalization of any
of its stock; (d) 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
(e) 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 (a) and (b) above; (2) in the case of the matters
referred to in (c) and (d) above at least 10 days prior written notice of the date when the same
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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 (e) above, the same notice as is
given to the holders of such registration rights. Company will also provide information requested
by Holder that is reasonably necessary to enable the Holder to comply with the Holder’s accounting
or reporting requirements.
3.3 Registration Under Securities Act of 1933, as amended; Market
Stand-off Agreement. 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 Investor Rights Agreement (the “Rights Agreement”).
The provisions set forth in the Rights Agreement or similar agreement relating
to the above in effect as of the Issue Date may not be amended, modified or
waived without the prior written consent of Holder unless such amendment,
modification or waiver does not affect the Shares in a manner that is
materially and adversely different than the effect that such amendment,
modification, or waiver has generally on the rights, preferences, privileges
or restrictions of the other shares of the same series and class as the Shares
granted to the Holder (without taking into account the particular
circumstances of any Holder). Holder agrees that the Shares shall be subject
to the restrictions on transfer as set forth in Sections 2 and 4 of the Rights
Agreement and the Lock-Up Agreement in Section 7 of the Rights Agreement.
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 are being 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 is aware of the
Company’s business affairs and financial condition and 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 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
6
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 Qualified Institutional Buyer Status. The Holder is a
“qualified institutional buyer” within the meaning of Rule 144A Preliminary
Note 7(a)(1)
promulgated under the Act.
4.6 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. Holder is aware of the
provisions of Rule 144 promulgated under the Act.
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 earliest to occur of (a) the
Expiration Date, (b) three (3) years from the effective date of the Company’s
initial public offering or (c) upon an Acquisition in accordance with Section
1.7.2(A) of this Warrant.
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 REASONABLY 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). The Company shall not
require Holder to provide an opinion of counsel if the transfer is to any affiliate of Holder.
Additionally, the Company shall also not require an opinion of counsel if there is no material
question as to the availability of an exemption to registration under Rule 144, including without
limitation, the availability of current information as referenced
7
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. After receipt by Holder of the executed
Warrant, Holder may transfer this Warrant to any affiliate of Holder, by
execution of an Assignment substantially in the form of Appendix 2. Subject
to the provisions of Article 5.3 and upon providing Company with written
notice, 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, 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) and transferee agrees to be bound by
the terms of this Warrant. The Company may refuse to transfer this Warrant or
the Shares to any person or entity who directly competes with the Company, as
reasonably determined by the Company in its good faith business judgment,
unless, in either case, the stock of the Company is publicly traded. Any
transferee shall take this Warrant subject to all provisions and restrictions
contained herein.
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:
Oxford Finance Corporation
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxx X. Lex, Chief Operating Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxx X. Lex, Chief Operating Officer
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:
ZONARE MEDICAL SYSTEMS, INC.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Chief Financial Officer
Facsimile: (000) 000-0000
000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Chief Financial Officer
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 Attorneys’ 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
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entitled to collect from the other party all costs incurred in such dispute, including reasonable
attorneys’ 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.
[Balance of Page Intentionally Left Blank]
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| “COMPANY” | Date: August 28, 2008 | |||||||||
| ZONARE MEDICAL SYSTEMS, INC. | ||||||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
Name:
|
Xxxxxxx X. Xxxxxxxx | Name: | Xxxxxxx X. Xxxxxx | |||||||
Title:
|
Chairman of the Board, President
or Vice President |
Title: | Chief Financial Officer, Secretary, Assistant Treasurer or Assistant |
|||||||
| Secretary | ||||||||||
“HOLDER”
OXFORD FINANCE CORPORATION
By: |
/s/ Xxxx X. Xxxxxxxxx | |||
Name: |
Xxxx X. Xxxxxxxxx | |||
Title: |
VP & General Counsel | |||
