STOCK AND WARRANT PURCHASE AGREEMENT
EXHIBIT 10.1
Cardima, Inc.
00000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Ladies &
Gentlemen:
The undersigned purchaser (the “Purchaser”) hereby confirms its agreement with you as
follows:
1. This Stock and Warrant Purchase Agreement (the “Purchase Agreement”) is made by
and between Cardima, Inc., a Delaware corporation (the “Company”), and the Purchaser as of the date this Purchase Agreement is accepted by the Company below (the “Effective Date”).
2. This Purchase Agreement is one of a series of stock and warrant purchase agreements of the Company relating to the offering
(the “Offering”) of securities of the Company. In connection with this Offering, the Company has authorized the issuance and sale of up to a maximum aggregate number of eight million five hundred and thirty nine thousand five hundred forty
eight (8,539,548) shares of the Company’s Common Stock, par value $0.001 per share (the “Common Stock”), and warrants to purchase up to two million five hundred sixty one thousand eight hundred sixty four (2,561,864) shares of the
Company’s Common Stock (the “Warrants”).
3. The Company and the Purchaser agree that
the Purchaser will purchase from the Company, and the Company, conditioned upon acceptance in whole or in part, will sell to the Purchaser shares of
Common Stock, at a purchase price per share of Common Stock equal to $ [which purchase price is equal to the average closing prices of the Common Stock for 5 consecutive trading days during a period ending on the
trading day immediately prior to the Closing Date] (the “Purchase Price”), and pursuant to, the Terms and Conditions for Purchase of Common Stock and Warrants attached hereto as Annex I and incorporated herein by reference as if fully set
forth herein.
4. For every ten (10) shares of Common Stock purchased by the Purchaser, the Company
will issue to the Purchaser a Warrant to purchase three (3) shares of Common Stock. The exercise price of each Warrant shall be $ [which exercise price is equal to 125% of the Purchase Price]. Each Warrant shall
be exercisable commencing six (6) months after the date of issuance; provided, that in accordance with the terms of the Warrant, the number of Warrant Shares (as defined in Annex I hereto) subject to purchase shall be permanently reduced on a
share-for-share basis by the number of shares of Common Stock and other Company securities (including short sales and sales or purchases of derivative securities) sold by the Purchaser during such six (6) month period. The Warrants are redeemable by
the Company at a price of $0.001 per Warrant Share upon notice to record holders of the Warrants if the average of the closing bid prices of the Common Stock has been at least $ [which is equal to 200% of Purchase
Price] for fifteen (15) consecutive trading days during a period ending within five (5)
1
business days of the date of the notice of redemption, all as more fully described in this Purchase Agreement, the Warrant and accompanying
documents. The Warrants are also subject to a mandatory exchange or termination in the case of certain reorganizations, mergers, or divestitures.
5. The Common Stock and Warrants will be sold on a first come, first served basis. The Company makes no representation that this Purchase Agreement will be accepted by the Company. In its
offering of Common Stock and Warrants, the Company may enter into Stock and Warrant Purchase Agreements with other purchasers; such purchasers may hereinafter be referred to as the “Purchasers.”
6. Purchaser hereby agrees not to engage, directly or indirectly, in any short sale or third party short sales or hold a
“put equivalent position” with respect to the Common Stock for a thirty (30) day period prior to and for a one hundred eighty (180) day period following the Closing Date.
Please confirm that the foregoing correctly sets forth the agreement between us by signing in the space provided below for that purpose.
PURCHASER:
If you are purchasing on your individual behalf, please provide the information requested and sign below: |
If you are signing on behalf of an entity, please provide the information requested and sign below: | |||
|
| |||
(Print Name of Purchaser) |
(Print Name of Purchaser) | |||
|
By: |
| ||
Signature |
2
Name: |
||
| ||
(Print name of authorized signatory) |
Title: |
||
| ||
|
Address: |
Address: |
|||||
|
| |||||
|
| |||||
|
|
Facsimile No.: |
Facsimile No.: |
|||||
|
|
Telephone No.: |
Telephone No.: |
|||||
|
|
Taxpayer Identification Number: |
Taxpayer Identification Number: |
|||||
|
|
ACCEPTED as of
, 2002 CARDIMA, INC., a Delaware Corporation | ||||
By: |
||||
| ||||
Name: |
||||
| ||||
Title: |
||||
|
3
ANNEX I
1. Authorization and Sale of the Common Stock and Warrants.
1.1 Authorization of the Common Stock and Warrants. The Company has authorized the issuance and sale of up to eight million five hundred and thirty nine thousand five hundred forty eight
(8,539,548) shares of the Company’s Common Stock, par value $0.001 per share (the “Common Stock”), along with warrants to purchase up to an aggregate of two million five hundred sixty one thousand eight hundred sixty four (2,561,864)
shares of the Company’s Common Stock (the “Warrants”) in the form attached hereto as Exhibit 1.1.
1.2 Sale of Common Stock and Warrants. Subject to the terms and conditions hereof, and in reliance upon the representations, warranties and agreements contained herein, the Company will issue
and sell to the Purchaser and the Purchaser will purchase the number of shares of Common Stock and Warrants agreed upon by the Purchaser and accepted by the Company at the Purchase Price, as set forth in the Stock and Warrant Purchase Agreement by
and between the Company and the Purchaser (the “Purchase Agreement”). The shares of Common Stock sold to the Purchaser pursuant to the Purchase Agreement are hereinafter referred to as the “Initial Shares” and the shares of
Common Stock arising from the exercise of the Warrant are hereinafter referred to as the “Warrant Shares.” The Initial Shares, the Warrant and the Warrant Shares are hereinafter collectively referred to as the “Securities.”
Annex 1-1
4
Company securities (including short sales and sales or purchases of derivative securities) sold by the Purchaser from the
Closing Date until and including the Warrant Determination Date. As a condition to exercising the Warrant, the Purchaser shall provide to the Company an affidavit and other reasonable supporting materials stating the amount of Company securities
sold (including short sales and sales or purchase of derivative securities) from the Closing Date until and including the Warrant Determination Date. The Warrant is redeemable by the Company at a price of $0.001 per Warrant Share upon notice to the
record holder of the Warrant if the average closing price per share of the Common Stock as reported by the National Association of Securities Dealers Automated Quotations (“NASDAQ”) or the OTC Bulletin Board has been at least
$ [which shall be equal to 200% of the Purchase Price] for a period of fifteen (15) consecutive trading days ending within five (5) business days of the date notice of
redemption is given in accordance with Section 6.6. The Warrant is also subject to a mandatory exchange or termination in the case of certain reorganizations, mergers, or divestitures.
Annex 1-2
5
(the “SEC Documents”), in each case as filed by the Company with the Securities and Exchange Commission (the
“SEC”) have been made available to the Purchaser upon request. The SEC Documents conform in all material respects to the requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as applicable, and the
rules, regulations and instructions of the SEC thereunder. The SEC Documents did not as of their dates contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances in which they were made, not misleading. The financial statements of the Company included in the SEC Documents (the “Financial Statements”) comply as to form in all material respects with
applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto. Except as may be indicated in the notes to the Financial Statements, the Financial Statements have been prepared in accordance with
generally accepted accounting principles consistently applied and fairly present, in all material respects, the financial position of the Company at the dates thereof and the results of its operations, stockholders’ equity and cash flows for
the periods then ended (subject, in the case of unaudited statements, to normal, recurring adjustments).
Annex 1-3
6
Preferred Stock, par value $0.001 per share (the “Preferred Stock”) of which 750,000 shares are designated
Series A Participating Preferred Stock, of which no shares were issued and outstanding as of April 25, 2002. All 42,699,875 shares of Common Stock of the Company outstanding as of April 25, 2002 have been duly authorized and validly issued and are
fully paid and nonassessable.
In connection with its private placement of Units of Company Common Stock and warrants in 2001, the Company entered into a letter agreement in April, 2001 (the “2001
Letter Agreement”) with a different financial advisor (the “Prior Placement Agent”). The Prior Placement Agent assisted the Company in its 2001 private placement of Units and received a commission in connection with the 2001 offering,
and the Prior Placement Agent continues to provide certain services to the Company in connection with the development of potential strategic alliances.
Annex1-4
7
The Company recently received communication from the Prior Placement Agent that
it may seek compensation for fees it claims are due to the Prior Placement Agent pursuant to the 2001 Letter Agreement in connection with the current placement arranged by the Placement Agent. The Company disagrees with the Prior Placement
Agent’s interpretation of the 2001 Letter Agreement and believes that, even if the Prior Placement Agent’s interpretation is correct, the Prior Placement Agent waived any rights to compensation in connection with this offering. In the
event the Prior Placement Agent prevails on this claim, the Company would be required to pay to the Prior Placement Agent 7.5% of the gross proceeds of the current offering and issue warrants to the Prior Placement Agent equal to 10% of the number
of shares sold in the current offering and, in the event warrants issued in the current offering are exercised, pay an additional cash amount equal to 7% of the exercise price of the warrants. Any payments to the Prior Placement Agent or warrants
issued to the Prior Placement Agent would be in addition to placement fees and warrants payable to the Placement Agent.
Annex 1-5
8
to enforceability to general principles of equity and to bankruptcy, insolvency, moratorium and other similar laws
affecting the enforcement of creditors’ rights generally. The execution, delivery and performance by the Purchaser of this Purchase Agreement and compliance herewith and therewith will not result in any violation of and will not conflict with,
or result in a breach of any of the terms of, or constitute a default under, any provision of any mortgage, indenture, agreement, instrument, judgment, decree, order, law, rule or regulation or other restriction to which Purchaser is a party or by
which it is bound, which violation, conflict, breach or default would have a material adverse effect upon the business or operations of the Purchaser, or result in the creation of any mortgage, pledge, lien, encumbrance or charge upon any of the
properties or assets of the Purchaser.
Annex 1-6
9
Annex 1-7
10
securities in the secondary market. The Purchaser acknowledges and realizes that the Company cannot assure Purchaser that
it will be able to maintain its listing on the Nasdaq.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THE SECURITIES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS REGISTERED UNDER THE SECURITIES ACT AND
QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS OR UNLESS SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND THE QUALIFICATION REQUIREMENTS OF APPLICABLE STATE SECURITIES LAWS AND
THE COMPANY RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED. THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE RIGHTS OF HOLDERS THEREOF ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER AND OTHER RESTRICTIONS, AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE (INCLUDING ANY FUTURE HOLDERS) IS BOUND BY THE TERMS OF A STOCK AND WARRANT PURCHASE AGREEMENT BETWEEN THE ORIGINAL PURCHASER AND THE COMPANY (COPIES
OF WHICH MAY BE OBTAINED FROM THE COMPANY).
Annex 1-8
11
permitted under the applicable rules and regulations of the SEC, a registration statement on Form S-3 (the
“Registration Statement”) with the SEC pursuant to the Securities Act to register the resale of the Initial Shares and Warrant Shares (the “Registrable Securities”); provided however, that in the event the Company
fails to be eligible to file a registration statement on Form S-3, the Company shall file with the SEC pursuant to the Securities Act a registration statement on Form S-1.
Annex 1-9
12
Annex 1-10
13
Annex 1-11
14
alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder on
the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Holders agree that it would not be just and equitable if contribution pursuant to
this Section 5.4.4 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this
Section 5.4.4. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 5.4.4 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5.4.4, no Holder shall be required to contribute any amount in excess of
the net amount received by the Holder from the sale of the Registrable Securities to which such loss relates. No person guilty of fraudulent misrepresentation (within the meaning of Section 11 (f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations in this Section 5.4.4 to contribute are several in proportion to their respective sales of Registrable Securities to which such loss
relates and not joint.
Annex 1-12
15
6.2 Governing Law. The
Purchase Agreement shall be governed in all respects by the laws of the State of California as such laws are applied to agreements between California residents entered into and to be performed entirely within California. The Purchaser hereby
irrevocably submits to the jurisdiction of any State or United States Federal court sitting in Alameda or San Francisco counties in the State of California over any action or proceeding arising out of or relating to this Purchase Agreement or any
agreement contemplated hereby, and the Purchaser hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such State or Federal court. The Purchaser further waives any objection to venue in
such State and any objection to an action or proceeding in such State on the basis of a non-convenient forum. The Purchaser further agrees that any action or proceeding brought against the Company shall be brought only in the State or United States
Federal courts sitting in Alameda or San Francisco counties in the State of California. THE PURCHASER AGREES TO WAIVE ITS RIGHT TO A JURY TRIAL ON ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS PURCHASE AGREEMENT OR ANY DOCUMENT OR
AGREEMENT CONTEMPLATED HEREBY.
Annex 1-13
16
Annex 1-14
17
EXHIBIT 1.1
Warrant No.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THE
SECURITIES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS REGISTERED UNDER THE SECURITIES ACT AND QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS OR UNLESS SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND THE QUALIFICATION REQUIREMENTS OF APPLICABLE STATE SECURITIES LAWS AND THE COMPANY RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT
REQUIRED. THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE RIGHTS OF HOLDERS THEREOF ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND OTHER RESTRICTIONS, AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE (INCLUDING ANY FUTURE
HOLDERS) IS BOUND BY THE TERMS OF A STOCK AND WARRANT PURCHASE AGREEMENT BETWEEN THE ORIGINAL PURCHASER AND THE COMPANY (COPIES OF WHICH MAY BE OBTAINED FROM THE COMPANY).
REDEEMABLE WARRANT TO PURCHASE SHARES
OF COMMON STOCK OF CARDIMA, INC.
This certifies that (the
“Holder”), for value received is entitled to purchase from Cardima, Inc., a Delaware corporation (the “Company”),
( ) fully paid and nonassessable shares of the Company’s Common Stock (the “Warrant Shares”) at a price of $[ ][which exercise price shall
be equal to 125% of the Purchase Price] per share (the “Stock Purchase Price”) at any time or from time to time on or after the Commencement Date (as defined below) up to and including 5:00 p.m. (Pacific time) on the Expiration Date (as
defined below), upon surrender to the Company at its principal office at 00000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (or at such other location as the Company may advise Holder in writing) of this Warrant properly endorsed with the Form of
Subscription attached hereto duly filled in and signed and upon payment by cash, cashier’s check or wire transfer of immediately available funds of the aggregate Stock Purchase Price for the number of shares for which this Warrant is being
exercised determined in accordance with the provisions hereof, such exercise to be conditioned upon the accuracy of all representations and warranties contained in such Form of Subscription. The Stock Purchase Price and the number of shares
purchasable hereunder are subject to adjustment as provided in Section 3 of this Warrant. “Commencement Date” means the date which is six (6) months after the date of issuance of this Warrant and “Expiration Date” means the
earlier of (i) four (4) years from the date hereof, (ii) the occurrence of an event, proposal of which is described in subsection (d) of Section 3.4 which causes termination of this Warrant under Section 3.4, or (iii) on the date specified in the
Notice
Exhibit 1.1-1
18
of Redemption (as defined below) pursuant to Section 7. This Warrant is issued pursuant to the Stock and Warrant Purchase Agreement between the Company and Holder dated as of the date hereof (the
“Purchase Agreement”).
This Warrant is subject to the following terms and conditions:
1.2 Payment. Payment of the Stock Purchase Price shall be made by surrender to the Company of this Warrant properly endorsed with the Form of Subscription attached
hereto duly filled in and signed and payment by cash, cashier’s check or wire transfer of immediately available funds and specifying the number of Warrant Shares to be purchased, during normal business hours on any day that is not a Saturday or
Sunday or a day on which banks are required or permitted to be closed in the State of California.
Exhibit 1.1-2
19
applicable law or regulation, or of any requirements of any domestic securities exchange or automated quotation system upon which
the Common Stock may be listed.
Exhibit 1.1-3
20
financial officer and shall state the Stock Purchase Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of this Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based.
(a) declare any cash dividend upon its Common
Stock;
(b) declare or make any dividend or other distribution to the holders of its
Common Stock, whether in cash, property or other securities;
(c) effect any
reorganization or reclassification of the capital stock of the Company or any consolidation or merger of the Company with or into another corporation or any sale, lease or conveyance of all or substantially all of the property of the Company; or
(d) effect a voluntary or involuntary dissolution, liquidation or winding-up of the
Company;
then, in any one or more of said cases, the Company shall give, by certified or registered mail, postage
prepaid, or international delivery service for international deliveries, addressed to the holder of this Warrant at the address of such holder as shown on the books of the Company, (i) at least fifteen (15) business days’ prior written notice
of the date on which the books of the Company shall close or a record shall be taken for such dividend or distribution or for determining rights to vote in respect of any such reorganization, reclassification, consolidation, merger, sale, lease,
conveyance, dissolution, liquidation or winding-up, and (ii) in the case of any such reorganization, reclassification, consolidation, merger, sale, lease, conveyance, dissolution, liquidation or winding-up, at least fifteen (15) business days’
written notice of the date when the same shall take place. Any notice given in accordance with clause (i) above shall also specify, in the case of any such dividend or distribution, the record date for such dividend or distribution, if after the
Commencement Date. Any notice given in accordance with clause (ii) above shall also specify the date on which the holders of Common Stock shall be entitled to exchange their Common Stock for securities or other property, if any, deliverable upon
such reorganization, reclassification, consolidation/merger, sale, lease, conveyance, dissolution, liquidation or winding-up, as the case may be and in connection with the occurrence of an event described in clause (d) above such notice shall
specify the anticipated net equity value that will accrue to Common Stock holders so that the Holder can make an informed decision whether or not to exercise this Warrant. In the event that the Holder of the Warrant does not exercise this Warrant
prior to the occurrence of an event described in clause (a) or (b) above, the Holder shall not be entitled to receive the benefits accruing to existing holders of the Common Stock in such event. Upon the occurrence of an event described in clause
(c) in which the holders of the Company’s voting securities of the Company immediately prior to the event do not hold at least fifty percent (50%) of the voting securities of the Company or the surviving entity (in a sale of assets, the Company
shall be the surviving entity) resulting from such event immediately after such event, this Warrant shall terminate unless the Company has negotiated (which it is under no obligation
Exhibit 1.1-4
21
to do) for the assumption of this Warrant. Upon the occurrence of an event
described in clause (c) and, subject to the immediately preceding sentence, the Holder shall be entitled thereafter, upon payment of the Stock Purchase Price in effect immediately prior to such action, to receive upon exercise of this Warrant the
class and number of shares which the Holder would have been entitled to receive after the occurrence of such event had this Warrant been exercised immediately prior to such event. In connection with the transactions described in clause (c) and
provided that this Warrant does not terminate as provided in the second sentence immediately preceding this sentence, the Company will require each person (other than the Company) that may be required to deliver any cash, stock, securities or other
property upon the exercise of this Warrant as provided herein to assume, by written instrument delivered to the Holder of this Warrant (x) the obligations of the Company under this Warrant and (y) the obligation to deliver to such Holder such cash,
stock, securities or other property as such Holder may be entitled to receive in accordance with the provisions of this Section 3. Upon the occurrence of an event the proposal of which is described in clause (d), this Warrant shall terminate.
Notwithstanding any other provision hereof, no Holder shall have the right to obtain an injunction or restraining order or otherwise interfere with or prevent the occurrence of any of the actions described in (a)—(d) above.
Exhibit 1.1-5
22
6.2 Restrictive Legend. Each certificate representing the Securities or any other securities issued in respect of the Securities upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event, shall (unless otherwise permitted by the provisions of the Purchase Agreement) be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legend required under applicable
state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THE SECURITIES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS REGISTERED UNDER THE SECURITIES ACT AND QUALIFIED
UNDER APPLICABLE STATE SECURITIES LAWS OR UNLESS SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND THE QUALIFICATION REQUIREMENTS OF APPLICABLE STATE SECURITIES LAWS AND THE
COMPANY RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED. THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE RIGHTS OF HOLDERS THEREOF ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER AND OTHER RESTRICTIONS, AND THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE (INCLUDING ANY FUTURE HOLDERS) IS BOUND BY THE TERMS OF A STOCK AND WARRANT PURCHASE AGREEMENT BETWEEN THE ORIGINAL PURCHASER AND THE COMPANY (COPIES
OF WHICH MAY BE OBTAINED FROM THE COMPANY).
Exhibit 1.1-6
23
combination, recapitalization or the like with respect to such shares). The term “Warrant” as used herein shall
be deemed to include any Warrants issued in exchange for this Warrant.
Exhibit 1.1-7
24
10. Descriptive Headings and Governing
Law. The descriptive headings of the several sections and paragraphs of this Warrant are inserted for convenience only and do not constitute a part of this Warrant. This Warrant shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of the State of California (without regard to its conflicts of law provisions). The Holder hereby irrevocably submits to the jurisdiction of any State or United States
Federal court sitting in the Alameda or San Francisco counties in the State of California over any action or proceeding arising out of or relating to this Warrant or any agreement contemplated hereby, and the Holder irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined in such State or Federal court. The Holder further waives any objection to venue in such State and any objection to an action or proceeding in such State based on
non-convenient forum. The Holder further agrees that any action or proceeding brought against the Company shall be brought only in the State or United States Federal courts sitting in Alameda or San Francisco counties in the State of California. THE
HOLDER AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OR ANY CLAIM FOR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS WARRANT OR ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY.
Exhibit 1.1-8
25
CARDIMA, INC., a Delaware corporation | ||
By: |
| |
Name: Title: |
Exhibit 1.1-9
26
FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To: Cardima, Inc.
The undersigned, the holder of the within
Warrant, hereby irrevocably elects to exercise such Warrant for, and to purchase thereunder, ( ) shares
of Common Stock of [ ] Inc. (the “Company”), and herewith makes payment in the amount of $
therefor. The certificates for such shares should be issued in the name of, and delivered to, whose address is
.
The undersigned represents, unless the exercise of this Warrant has been registered under the Securities Act of 1933, as amended (the “Securities Act”), that (i) the undersigned is acquiring
such Common Stock for his or its own account for investment and not with a view to or for sale in connection with any distribution thereof (except for any resale pursuant to a registration statement under the Securities Act), (ii) the undersigned
has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the undersigned’s investment in the shares of Common Stock, (iii) the undersigned has received all of the information the
undersigned requested from the Company and the undersigned considers necessary or appropriate for deciding whether to purchase the shares, (iv) the undersigned has the ability to bear the economic risks of the undersigned’s prospective
investment and (v) the undersigned is able, without materially impairing his financial condition, to hold the shares of Common Stock for an indefinite period of time and to suffer complete loss on the undersigned’s investment.
The undersigned is an “accredited investor” as defined in Regulation D of the Securities and Exchange Commission on
the date hereof.
DATED:
| ||
(Signature must conform in all respects to name of holder as specified on the face of the
Warrant) | ||
| ||
(Address) |
Exhibit 1.1-10
27
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT.
ASSIGNMENT FORM
(To be executed only upon transfer of this Warrant)
For value received, the undersigned
registered holder of the within Warrant hereby sells, assigns and transfers unto (the “Assignee”) the right represented by such Warrant to purchase
Warrant Shares and all other rights of the Holder with respect thereto under the within Warrant, and appoints
as Attorney to make such transfer on the books of Cardima, Inc. maintained for such purpose, with full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee acknowledges that this Warrant and the Warrant Shares to be
issued upon exercise hereof are being acquired for investment and that the Assignee will not offer, sell or otherwise dispose of this Warrant or any Warrant Shares to be issued upon exercise hereof except under circumstances that will not result in
a violation of the Securities Act of 1933, as amended, or any state securities laws. Further, the Assignee has acknowledged that upon exercise of this Warrant, the Assignee shall, if requested by the Company, confirm in writing, in a form
satisfactory to the Company, that the Warrant Shares so purchased are being acquired for investment and not with a view toward distribution or resale.
Dated: .
[MEDALLION GUARANTEE]
| ||
(Signature) | ||
| ||
(Print Name) | ||
| ||
(Street Address) | ||
| ||
(City) (State) (Zip
Code) | ||
Exhibit 1.1-11
28
EXHIBIT 2.1
DOMESTIC
WIRE INSTRUCTIONS
Exhibit 2.1(a)
29
EXHIBIT 4.9
INVESTMENT REPRESENTATION STATEMENT
3.1 Purchaser acknowledges and realizes that Purchaser’s purchase of the Securities involves a high degree of risk and will be a highly
speculative investment and that Purchaser is able, without impairing Purchaser’s financial condition, to hold the Securities for an indefinite period of time and to suffer a complete loss of Purchaser’s investment.
3.2 Purchaser has carefully considered and has, to the extent Purchaser believes such discussions necessary,
discussed with Purchaser’s professional, legal, tax and financial advisors the suitability of an investment in the Securities for the particular legal, tax and financial situation of Purchaser and that Purchaser and/or Purchaser’s advisors
have determined that the Securities are a suitable investment for Purchaser.
3.3 Purchaser has such knowledge and experience in business and financial matters, including without limitation, investment in technology and biotechnology companies, as will enable Purchaser to fend for itself, bear the
economic risks of its investment and evaluate the merits and risks of an investment in the Securities and to make an informed investment decision.
3.4 Purchaser has carefully read the Purchase Agreement and all attachments thereto and the Company has made available to Purchaser or
Purchaser’s advisors all information and documents requested by Purchaser relating to investment in the Securities, and has provided answers to Purchaser’s satisfaction to all of Purchaser’s questions concerning the Company and the
Securities to be acquired.
3.5 Purchaser understands that neither the Company nor any
of its officers/directors, has any obligation to register the Securities under any federal or state
Exhibit 4.9-1
30
securities act or law except as otherwise expressly set forth in Section 5.3 of the Annex to the Purchase Agreement.
3.6 All information that Purchaser has provided concerning himself or herself, his or
her financial position and (each of) his/her representative(s), if any, is correct and complete as of the date set forth below, and if there should be any material change in such information, Purchaser will provide such information to the Company as
soon as practicable thereafter.
3.7 Purchaser understands that the Company is relying
on the truth and accuracy of the declarations, representations, warranties and agreements made by Purchaser to the Company herein in transferring the Securities to Purchaser.
3.8 Purchaser confirms that Purchaser has received no general solicitation or general advertisement and has attended no seminar or meeting (whose
attendees have been invited by any general solicitation or general advertisement) and has received no advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast or television or radio
regarding the Offering of the Securities.
¨ (a) A natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of his/her purchase, exceeds $1 million; or
¨ (b) A
natural person who had individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same
income level in the current year;
¨ (c) a bank as defined in Section 3(a)(2) of the Securities Act;
¨ (d) a
savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary capacity;
¨ (e) a
broker dealer registered pursuant to Section 15 of the Exchange Act;
¨ (f) an insurance company as defined in Section 2(13) of the Securities Act;
¨ (g) an investment company registered under the Investment Company Act of 1940, as amended, or a business development company as defined in Section 2(a)(48) of the Securities Act;
¨ (h) a small business investment company licensed under the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958;
Exhibit 4.9-2
31
¨ (i) a private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940, as amended;
¨ (j) a
corporation, partnership, an organization described in Section 501)(3) of the Internal Revenue Code of 1986, or a Massachusetts or similar business trust, not formed for the specific purpose of acquiring the Securities, with total assets in excess
of $5,000,000;
¨ (k) a trust, with total assets in excess of $5,000,000 not formed for the specific purpose of acquiring the Securities, whose purchase of the Securities is directed by a
sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D promulgated under the Securities Act; or
¨ (l) an entity in which all of the equity owners meet one of the requirements of
paragraphs (a) through (k) hereof, including, without limitation, a grantor revocable trust of which the grantor meets the requirements of paragraphs (a) through (k). (IF THIS ITEM IS CHECKED, PLEASE HAVE EACH EQUITY OWNER COMPLETE A COPY OF THIS
FORM OF QUESTIONNAIRE)
If you are purchasing as an individual, please print your name and sign below: |
If you are signing on behalf of an entity, please print the name of the entity and sign below, indicating your
title: | |||||
|
| |||||
(Print Name of Purchaser) |
(Print Name of Purchaser) | |||||
|
By: |
| ||||
Signature |
Name: |
| ||||
(Print Name of Purchaser) | ||||||
Title: |
|
Exhibit 4.9-3
32