Exhibit 4.6
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 AS SET FORTH IN SECTIONS 5.3 AND 5.4 BELOW, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS
AND UNTIL REGISTERED UNDER SAID ACT AND LAWS OR IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY, SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER
IS EXEMPT FROM SUCH REGISTRATION.
WARRANT TO PURCHASE STOCK
Company: |
|
EBR SYSTEMS, INC., a Delaware corporation |
Number of Shares: |
|
as set forth below |
Class of Stock: |
|
as set forth below |
Warrant Price: |
|
as set forth below |
Issue Date: |
|
February [___], 2018 |
Expiration Date: |
|
February [___], 2028 See also Section 5.1(b). |
Credit Facility: |
|
This Warrant to Purchase Stock (as the same may from time to time be amended, modified, supplemented or restated, “Warrant”) is issued in connection with that certain Second Amendment to Loan and Security Agreement of even date herewith between Silicon Valley Bank and the Company, which amends that certain Loan and Security Agreement dated as of November 28, 2012 (as the same may from time to time be amended, modified, supplemented or restated, the “Loan Agreement”). |
THIS WARRANT CERTIFIES THAT,
for good and valuable consideration, SILICON VALLEY BANK (together with any successor or permitted assignee or transferee of this Warrant
or of any shares issued upon exercise hereof, “Holder”) is entitled to purchase the number of fully paid and
non-assessable shares (the “Shares”) of the above-stated Class of Stock (the “Class”)
of the above-named company (the “Company”) at the above-stated Warrant Price, all as set forth above and as
adjusted pursuant to Section 2 of this Warrant, subject to the provisions and upon the terms and conditions set forth in this Warrant.
Reference is made to Section 5.4 of this Warrant whereby Silicon Valley Bank shall transfer this Warrant to its parent company, SVB
Financial Group.
As used herein:
“Class of Stock”
means at Bank’s option: (i) the Company’s New Series B Preferred Stock, or (ii) Next Round Stock; provided that until the
Next Round occurs, the Class of Stock shall be the Company’s New Series B Preferred Stock.
“Next Round”
means the Company’s next sale of its convertible preferred stock (other than New Series B Preferred Stock) to purchasers which include
venture capital investors.
“Next Round Price”
means the lowest effective price per share (on a common stock equivalent basis and taking into account any securities issued together
with the preferred stock) at which shares of the Company’s convertible preferred stock are sold in the Next Round.
“Next Round Stock”
means the Company’s convertible preferred stock issued and sold in the Next Round.
“Number of Shares”
means 234,176 shares, which is equal to one fifth of one percent (0.20%) of the total fully diluted shares of the Company as of the Issue
Date.
“Series B Price”
means $0.8245 per share.
“Warrant Price”
means: (i) if the Class of Stock is New Series B Preferred Stock, the Series B Price, or (ii) if the Class of Stock is Next Round Stock,
the Next Round Price.
Section
1. EXERCISE.
1.1 Method
of Exercise. Holder may at any time and from time to time through the Expiration Date exercise this Warrant, in whole or in part,
by delivering to the Company the original of this Warrant together with a duly executed Notice of Exercise in substantially the form attached
hereto as Appendix 1 and, unless Holder is exercising this Warrant pursuant to a cashless exercise set forth in Section 1.2,
a check, wire transfer of same-day funds (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 Cashless
Exercise. On any exercise of this Warrant, in lieu of payment of the aggregate Warrant Price in the manner as specified in Section 1.1
above, but otherwise in accordance with the requirements of Section 1.1, Holder may elect to receive and the Company shall issue
to the Holder such number of fully paid and non-assessable Shares as are computed using the following formula:
X = Y(A-B)/A
where:
| X = | the number of Shares to be issued to the Holder; |
| Y = | the number of Shares with respect to which this Warrant is being exercised (inclusive of the Shares surrendered
to the Company in payment of the aggregate Warrant Price); |
| A = | the Fair Market Value (as determined pursuant to Section 1.3 below) of one Share; and |
1.3 Fair
Market Value. If the Company’s common stock is then traded or quoted on a nationally recognized securities exchange, inter-dealer
quotation system or over-the-counter market (a “Trading Market”) and the Class is common stock, the fair market
value of a Share shall be the closing price or last sale price of a share of common stock reported for the Business Day immediately before
the date on which Holder delivers this Warrant together with its Notice of Exercise to the Company. If the Company’s common stock
is then traded in a Trading Market and the Class is a series of the Company’s convertible preferred stock, the fair market value
of a Share shall be the closing price or last sale price of a share of the Company’s common stock reported for the Business Day
immediately before the date on which Holder delivers this Warrant together with its Notice of Exercise to the Company multiplied by the
number of shares of the Company’s common stock into which a Share is then convertible. If the Company’s common stock is not
traded in a Trading Market, the Board of Directors of the Company shall determine the fair market value of a Share in its reasonable good
faith judgment.
1.4 Delivery
of Certificate and New Warrant. Within a reasonable time after Holder exercises this Warrant in the manner set forth in Section 1.1
or 1.2 above, the Company shall deliver to Holder a certificate representing the Shares issued to Holder upon such exercise and, if this
Warrant has not been fully exercised and has not expired, a new warrant of like tenor representing the Shares not so acquired.
1.5 Replacement
of Warrant. 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, substance and amount
to the Company or, in the case of mutilation, on surrender of this Warrant to the Company for cancellation, the Company shall, within
a reasonable time, execute and deliver to Holder, in lieu of this Warrant, a new warrant of like tenor and amount.
1.6 Treatment
of Warrant Upon Acquisition of Company.
(a) Acquisition.
For the purpose of this Warrant, “Acquisition” means any Liquidation Transaction (as such term is defined in
the Company’s certificate of incorporation in effect on the Issue Date).
(b) Treatment
of Warrant at Acquisition. In the event of an Acquisition in which the consideration to be received by the Company’s stockholders
consists solely of cash, solely of Marketable Securities or a combination of cash and Marketable Securities (a “Cash/Public
Acquisition”), and the fair market value of one Share as determined in accordance with Section 1.3 above would be greater
than the Warrant Price in effect on such date immediately prior to such Cash/Public Acquisition, and Holder has not exercised this Warrant
pursuant to Section 1.1 above as to all Shares, then this Warrant shall automatically be deemed to be Cashless Exercised pursuant to Section 1.2
above as to all Shares effective immediately prior to and contingent upon the consummation of a Cash/Public Acquisition. In connection
with such Cashless Exercise, Holder shall be deemed to have restated each of the representations and warranties in Section 4 of the Warrant
as the date thereof and the Company shall promptly notify the Holder of the number of Shares (or such other securities) issued upon exercise.
In the event of a Cash/Public Acquisition where the fair market value of one Share as determined in accordance with Section 1.3 above
would be less than the Warrant Price in effect immediately prior to such Cash/Public Acquisition, then this Warrant will expire immediately
prior to the consummation of such Cash/Public Acquisition.
(c) Upon
the closing of any Acquisition other than a Cash/Public Acquisition defined above, the acquiring, surviving or successor entity shall
assume the obligations of this Warrant, and this Warrant shall thereafter be exercisable for the same securities and/or other property
as would have been paid for the Shares issuable upon exercise of the unexercised portion of this Warrant as if such Shares were outstanding
on and as of the closing of such Acquisition, subject to further adjustment from time to time in accordance with the provisions of this
Warrant.
(d) As
used in this Warrant, “Marketable Securities” means securities meeting all of the following requirements, determined
as of immediately prior to the closing of an Acquisition: (i) the issuer thereof is then subject to the reporting requirements of
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and is then current in its filing of all required reports and other information under the Act and the Exchange Act; (ii) the class
and series of shares or other security of the issuer that would be received by Holder in connection with the Acquisition were Holder to
exercise this Warrant on or prior to the closing thereof is then traded in Trading Market, and (iii) Holder would be able to publicly
re-sell, within six (6) months following the closing of such Acquisition, all of the issuer’s shares and/or other securities that
would be received by Holder in such Acquisition were Holder to exercise this Warrant in full on or prior to the closing of such Acquisition.
Section
2. ADJUSTMENTS TO THE SHARES AND WARRANT PRICE.
2.1 Stock
Dividends, Splits, Etc. If the Company declares or pays a dividend or distribution on the outstanding shares of the Class payable
in common stock or other securities or property (other than cash), then upon exercise of this Warrant, for each Share acquired, Holder
shall receive, without additional cost to Holder, the total number and kind of securities and property which Holder would have received
had Holder owned the Shares of record as of the date the dividend or distribution occurred. If the Company subdivides the outstanding
shares of the Class by reclassification or otherwise into a greater number of shares, the number of Shares purchasable hereunder shall
be proportionately increased and the Warrant Price shall be proportionately decreased. If the outstanding shares of the Class 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 event whereby all of the outstanding shares of the Class are reclassified, exchanged,
combined, substituted, or replaced for, into, with or by Company securities of a different class and/or series, then from and after the
consummation of such event, this Warrant will be exercisable for the number, class and series of Company securities that Holder would
have received had the Shares been outstanding on and as of the consummation of such event, and subject to further adjustment thereafter
from time to time in accordance with the provisions of this Warrant. The provisions of this Section 2.2 shall similarly apply to
successive reclassifications, exchanges, combinations substitutions, replacements or other similar events.
2.3 Conversion
of Preferred Stock. If the Class is a class and series of the Company’s convertible preferred stock, in the event that all outstanding
shares of the Class are converted, automatically or by action of the holders thereof, into common stock pursuant to the provisions of
the Company’s Certificate of Incorporation, including, without limitation, in connection with the Company’s initial, underwritten
public offering and sale of its common stock pursuant to an effective registration statement under the Act (the “IPO”),
then from and after the date on which all outstanding shares of the Class have been so converted, this Warrant shall be exercisable for
such number of shares of common stock into which the Shares would have been converted had the Shares been outstanding on the date of such
conversion, and the Warrant Price shall equal the Warrant Price in effect as of immediately prior to such conversion divided by the number
of shares of common stock into which one Share would have been converted, all subject to further adjustment thereafter from time to time
in accordance with the provisions of this Warrant.
2.4 Adjustments
for Diluting Issuances. Without duplication of any adjustment otherwise provided for in this Section 2, the number of shares of common
stock issuable upon conversion of the Shares shall be subject to anti-dilution 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.
2.5 No
Fractional Share. No fractional Share shall be issuable upon exercise 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 of the Warrant, the Company shall
eliminate such fractional Share interest by paying Holder in cash the amount computed by multiplying the fractional interest by (i) the
fair market value (as determined in accordance with Section 1.3 above) of a full Share, less (ii) the then-effective Warrant
Price.
2.6 Notice/Certificate
as to Adjustments. Upon each adjustment of the Warrant Price, Class and/or number of Shares, the Company, at the Company’s expense,
shall notify Holder in writing within a reasonable time setting forth the adjustments to the Warrant Price, Class and/or number of Shares
and facts upon which such adjustment is based. The Company shall, upon written request from Xxxxxx, furnish Holder with a certificate
of its Chief Financial Officer or other officer of the Company, including computations of such adjustment and the Warrant Price, Class
and number of Shares in effect upon the date of such adjustment.
Section
3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 Representations
and Warranties. The Company represents and warrants to, and agrees with, 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 shares of the Class
were last sold and issued prior to the Issue Date hereof in an arms-length transaction in which at least $500,000 of such shares were
sold.
(b) All
Shares which may be issued upon the exercise of this Warrant, and all securities, if any, issuable upon conversion of the Shares, shall,
upon issuance, be duly authorized, validly issued, fully paid and non-assessable, and free of any liens and encumbrances except for restrictions
on transfer provided for herein or under applicable federal and state securities laws. The Company covenants that it shall at all times
cause to be reserved and kept available out of its authorized and unissued capital stock such number of shares of the Class, common stock
and other securities as will be sufficient to permit the exercise in full of this Warrant and the conversion of the Shares into common
stock or such other securities.
(c) The
Company’s capitalization table attached hereto as Schedule 1 is true and complete, in all material respects, as of the Issue Date.
3.2 Notice
of Certain Events. If the Company proposes at any time to:
(a) declare
any dividend or distribution upon the outstanding shares of the Class or common stock, whether in cash, property, stock, or other securities
and whether or not a regular cash dividend;
(b) offer
for subscription or sale pro rata to the holders of the outstanding shares of the Class any additional shares of any class or series of
the Company’s stock (other than pursuant to contractual pre-emptive rights);
(c) effect
any reclassification, exchange, combination, substitution, reorganization or recapitalization of the outstanding shares of the Class;
(d) effect
an Acquisition or to liquidate, dissolve or wind up; or
(e) effect
an IPO;
then, in connection with each such event, the
Company shall give Holder:
(1) at least seven
(7) Business 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 outstanding shares of the Class 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 seven (7) Business Days prior written notice of the date when the same will take
place (and specifying the date on which the holders of outstanding shares of the Class will be entitled to exchange their shares for the
securities or other property deliverable upon the occurrence of such event and such reasonable information as Holder may reasonably require
regarding the treatment of this Warrant in connection with such event giving rise to the notice); and
(3) with respect
to the IPO, the same notice as is given to holders of registration rights with respect to the Company’s common stock.
Company will also provide information requested
by Holder that is reasonably necessary to enable Holder to comply with Xxxxxx’s accounting or reporting requirements.
Section
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 Xxxxxx are being acquired for investment
for Xxxxxx’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 it has not been formed for the specific purpose of acquiring this Warrant or the Shares.
4.2 Disclosure
of Information. Xxxxxx 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. Xxxxxx 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 Holder or to which Holder has access.
4.3 Investment
Experience. Holder understands that the purchase of this Warrant and its underlying securities involves substantial risk. Holder has
experience as an investor in securities of companies in the development stage and acknowledges that Holder can bear the economic risk
of such Xxxxxx’s investment in this Warrant and its underlying securities and has such knowledge and experience in financial or
business matters that 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 Holder to be aware of the character, business acumen and financial circumstances of such persons.
4.4 Accredited
Investor Status. Holder is an “accredited investor” within the meaning of Regulation D promulgated under the Act.
4.5 The
Act. Holder understands that this Warrant and the Shares issuable upon exercise 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. Holder understands that this Warrant and the Shares issued upon any exercise 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.
4.6 Market
Stand-off Agreement. The Holder agrees that the Shares shall be subject to the Market Standoff provisions in Section 1.14 of
the Amended and Restated Investors’ Rights Agreement dated as of October 30, 2017, by and among the Company and the investors listed
on the exhibits thereto, as such agreement may be amended from time to time, or similar agreement. In order to enforce such covenants,
the Company may impose stop-transfer instructions with respect to the securities of the Holder
4.7 No
Voting Rights. Holder, as a Holder of this Warrant, will not have any voting rights until the exercise of this Warrant and, except
as expressly set forth in this Warrant, will not have any other rights as a stockholder until the exercise of this Warrant.
Section
5. MISCELLANEOUS.
5.1 Term
and Automatic Conversion Upon Expiration.
(a) Term.
Subject to the provisions of Section 1.6 above, this Warrant is exercisable in whole or in part at any time and from time to time
on or before 6:00 PM, Pacific time, on the Expiration Date and shall be void thereafter.
(b) Automatic
Cashless Exercise 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 exercised pursuant to Section 1.2 above
as to all Shares (or such other securities) for which it shall not previously have been exercised, and the Company shall, within a reasonable
time, deliver a certificate representing the Shares (or such other securities) issued upon such exercise to Holder.
5.2 Legends.
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 (as well as any other legends required by the Company’s bylaws or any voting agreement, investor
rights agreement or similar agreement affecting the Class of Stock):
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY
STATE AND, EXCEPT AS SET FORTH IN THAT CERTAIN WARRANT TO PURCHASE STOCK ISSUED BY THE ISSUER TO SILICON VALLEY BANK DATED FEBRUARY [___],
2018, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND LAWS OR IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER, SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER IS EXEMPT FROM SUCH 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 except in 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 SVB Financial Group (Silicon Valley Bank’s
parent company) or any other affiliate of Holder, provided that any such transferee is an “accredited investor” as defined
in Regulation D promulgated under the Act. 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 Xxxxxx's notice of proposed sale.
5.4 Transfer
Procedure. After receipt by Silicon Valley Bank of the executed Warrant, Silicon Valley Bank will transfer all of this Warrant to
its parent company, SVB Financial Group. By its acceptance of this Warrant, SVB Financial Group hereby makes to the Company each of the
representations and warranties set forth in Section 4 hereof and agrees to be bound by all of the terms and conditions of this Warrant
as if the original Holder hereof. Subject to the provisions of Section 5.3 and upon providing the 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 securities 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 Xxxxxx will surrender this Warrant to the
Company for reissuance to the transferee(s) (and Holder if applicable); and provided further, that any subsequent transferee other than
SVB Financial Group shall agree in writing with the Company to be bound by all of the terms and conditions of this Warrant. Notwithstanding
any contrary provision herein, at all times prior to the IPO, Holder may not, without the Company’s prior written consent, transfer
this Warrant or any portion hereof, or any Shares issued upon any exercise hereof, or any shares or other securities issued upon any conversion
of any Shares issued upon any exercise hereof, to any person or entity who directly competes with the Company, except in connection with
an Acquisition of the Company by such a direct competitor.
5.5 Notices.
All notices and other communications hereunder from the Company to the Holder, or vice versa, shall be deemed delivered and effective
(i) when given personally, (ii) on the third (3rd) Business Day after being mailed by first-class registered or certified
mail, postage prepaid, (iii) upon actual receipt if given by facsimile or electronic mail and such receipt is confirmed in writing
by the recipient, or (iv) on the first Business Day following delivery to a reliable overnight courier service, courier fee prepaid,
in any case at such address as may have been furnished to the Company or Holder, as the case may be, in writing by the Company or such
Holder from time to time in accordance with the provisions of this Section 5.5. All notices to 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
Email address: xxxxxxxxxxx@xxx.xxx
Notice to the Company shall
be addressed as follows until Xxxxxx receives notice of a change in address:
EBR Systems, Inc.
Attn: Xxxxx Xxxx, Chief Executive Officer
000 Xxxxxxx Xxxxxxx
Sunnyvale, California 94085
Telephone: 000-000-0000
Facsimile: 000-000-0000
Email: xxxxx@xxxxxxxxxxxxx.xxx
5.6 Waiver.
This Warrant and any term hereof may be changed, waived, discharged or terminated (either generally or in a particular instance and either
retroactively or prospectively) 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 attorneys’
fees.
5.8 Counterparts;
Facsimile/Electronic Signatures. This Warrant may be executed in counterparts, all of which together shall constitute one and the
same agreement. Company, Xxxxxx and any other party hereto may execute this Warrant by electronic means and each party hereto recognizes
and accepts the use of electronic signatures and records by any other party hereto in connection with the execution and storage hereof.
To the extent that this Warrant or any agreement subject to the terms hereof or any amendment hereto is executed, recorded or delivered
electronically, it shall be binding to the same extent as though it had been executed on paper with an original ink signature. The
fact that this Warrant is executed, signed, stored or delivered electronically shall not prevent the transfer by any Holder of this Warrant
pursuant to Section 5.4 or the enforcement of the terms hereof.
5.9 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.
5.10 Headings.
The headings in this Warrant are for purposes of reference only and shall not limit or otherwise affect the meaning of any provision of
this Warrant.
5.11 Business
Days. “Business Day” is any day that is not a Saturday, Sunday or a day on which Silicon Valley Bank is
closed.
[Remainder of page left blank intentionally]
[Signature page follows]
IN WITNESS WHEREOF, the parties
have caused this Warrant to Purchase Stock to be executed by their duly authorized representatives effective as of the Issue Date written
above.
“COMPANY”
EBR SYSTEMS, INC.
“HOLDER”
SILICON VALLEY BANK
[Signature Page to Warrant]
APPENDIX 1
NOTICE OF EXERCISE
1. The
undersigned Holder hereby exercises its right purchase ___________ shares of the Common/Series ______ Preferred [circle one] Stock of
EBR Systems, Inc. (the “Company”) in accordance with the attached Warrant To Purchase Stock, and tenders payment
of the aggregate Warrant Price for such shares as follows:
[ ] |
|
check in the amount of $________ payable to order of the Company enclosed herewith |
|
|
|
[ ] |
|
Wire transfer of immediately available funds to the Company’s account |
|
|
|
[ ] |
|
Cashless Exercise pursuant to Section 1.2 of the Warrant |
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 Section 4
of the Warrant to Purchase Stock as of the date hereof.
|
HOLDER: |
|
|
|
|
|
|
|
|
|
|
By: |
|
|
|
|
|
Name: |
|
|
|
|
|
Title: |
|
|
|
|
|
Date: |
|
|
SCHEDULE 1
Company Capitalization Table
See attached