Exhibit 4.1
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 SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION
IS EXEMPT FROM REGISTRATION.
WARRANT TO PURCHASE
STOCK
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Company:
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AtriCure, Inc.,
a Delaware corporation
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Number of Shares:
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371,732
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Class of
Stock:
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Common
Stock
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Warrant
Price:
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$1.224 per
share
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Issue
Date:
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May 1,
2009
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Expiration
Date:
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The 10th
anniversary after the Issue Date
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Credit
Facility:
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This Warrant is
issued in connection with the Term Loan referenced in the Loan and
Security Agreement between Company and Silicon Valley Bank dated
May 1, 2009.
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THIS WARRANT CERTIFIES THAT, for
good and valuable consideration, SILICON VALLEY BANK (Silicon
Valley Bank, 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, in whole or part, 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.
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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. 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, 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, other than in connection with a conversion set forth
in Article 1.2, 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, terms and amount.
1.6 Treatment of Warrant Upon
Acquisition of Company .
1.6.1 “ Acquisition
”. For the purpose of this Warrant, “Acquisition”
means any sale, license, 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.
1.6.2 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 Holder with written notice of its request relating to
the foregoing (together with such reasonable information as Holder
may 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
(a “True Asset Sale”), either (a) Holder
shall
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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. The Company shall provide Holder with
written notice of its request relating to the foregoing (together
with such reasonable information as Holder may 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 closing of any
Acquisition other than those particularly described in subsections
(A) and (B) 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.
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 record date for the dividend payment. 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.
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 Articles or Certificate (as applicable) 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
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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 [Reserved] .
2.4 No Impairment . The
Company shall not, by amendment of its Articles or Certificate (as
applicable) of Incorporation or through a reorganization, transfer
of assets, consolidation, merger, dissolution, issue, or sale of
securities or any other voluntary action, 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.
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 as determined pursuant to Article 1.3
hereof.
2.6 Certificate as to
Adjustments . Upon each adjustment of the Warrant Price and/or
number of Shares, the Company shall promptly notify Holder in
writing, and, at the Company’s expense, promptly compute such
adjustment, and furnish Holder with a certificate from 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 and number of Shares in effect upon the date thereof and the
series of adjustments leading to such Warrant Price and number of
Shares.
ARTICLE 3. REPRESENTATIONS AND
COVENANTS OF THE COMPANY .
3.1 Representations and
Warranties . The Company represents and warrants to Holder as
follows:
(a) 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
an