EX-4.6



 Exhibit 4.6 

THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS,
AND MAY NOT BE SOLD OR TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR SOME OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS IS
AVAILABLE WITH RESPECT THERETO. 
 PREFERRED STOCK PURCHASE WARRANT 

 

			
	Warrant No. E-1		Number of Shares: a maximum of 1,564,238
			 Series E Preferred Stock

Subject to determination as set forth below


 INVUITY, INC. 

Effective as of February 28, 2014 

Void after February 28, 2024 

1. Issuance. This Preferred Stock Purchase Warrant (the “Warrant”) is issued to HEALTHCARE
ROYALTY PARTNERS II, L.P. by INVUITY, INC., a California corporation (hereinafter with its successors called the “Company”). 

2. Purchase Price; Number of Shares. 

(a) The registered holder of this Warrant (the “Holder”), is entitled upon surrender of this Warrant with the subscription
form annexed hereto duly executed, at the principal office of the Company, to purchase from the Company, at a price per share of $0.7192 (as adjusted pursuant to Sections 9 and 11, the “Purchase Price”), up to a
maximum of 1,564,238 fully paid and nonassessable shares of the Company’s Series E Preferred Stock (as adjusted pursuant to Sections 9 and 11), no par value (the shares issuable upon exercise of this Warrant being
referred to herein as the “Preferred Stock”). Commencing on the date hereof, 1,042,825 (the “First Tranche Exercise Quantity” and, together with the Second Tranche Exercise Quantity (as defined below), the
“Exercise Quantity”) of shares of Preferred Stock are immediately available for purchase hereunder. 
 (b) On the Second
Closing Date, if any, the Exercise Quantity shall automatically be increased by such additional number of shares (rounded down to the nearest whole share) as is equal to the quotient of (A) 7.5% of the Second Tranche Term Loan as specified in
the Second Notice of Borrowing pursuant to the Loan Agreement, divided by (B) the Purchase Price up to a maximum of 521,413 shares of Preferred Stock (the “Second Tranche Exercise Quantity”). 

Any term not defined herein shall have the meaning as set forth in that certain Loan Agreement dated February 28, 2014 between the Company, Healthcare
Royalty Partners II, L.P. and other parties thereto from time to time. 
 Until such time as this Warrant is exercised in full or expires, the Purchase
Price and the securities issuable upon exercise of this Warrant are subject to adjustment as hereinafter provided. The person or persons in whose name or names any certificate representing shares of Preferred Stock is issued hereunder shall be
deemed to have become the holder of record of the shares represented thereby as at the close of business on the date this Warrant is exercised with respect to such shares, whether or not the transfer books of the Company shall be closed. 

3. Payment of Purchase Price. The Purchase Price may be paid (i) in cash or by check, (ii) by the surrender by the Holder to
the Company of any promissory notes or other obligations issued by the Company, with all such notes and obligations so surrendered being credited against the Purchase Price in an amount equal to the principal amount thereof plus accrued interest to
the date of surrender or (iii) by any combination of the foregoing. 

  
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 4. Net Issue Election. The Holder may elect to receive, without the payment by the
Holder of any additional consideration, shares of Preferred Stock equal to the value of this Warrant or any portion hereof by the surrender of this Warrant or such portion to the Company, with the net issue election notice annexed hereto duly
executed, at the principal office of the Company. Thereupon, the Company shall issue to the Holder such number of fully paid and nonassessable shares of Preferred Stock as is computed using the following formula: 

 
 



 
  

					
	where:		X =		the number of shares of Preferred Stock to be issued to the Holder pursuant to this Section 4.
			
			Y =		the number of shares of Preferred Stock covered by this Warrant in respect of which the net issue election is made pursuant to this Section 4.
			
			A =		the Fair Market Value (defined below) of one share of Preferred Stock, as determined at the time the net issue election is made pursuant to this Section 4.
			
			B =		the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 4.

 “Fair Market Value” of a share of Preferred Stock as of the date that the net issue election
is made (the “Determination Date”) shall mean: 
 (i) If the net issue election is made in connection with and contingent
upon the closing of the sale of the Company’s common stock, no par value (the “Common Stock”) to the public in a public offering pursuant to a Registration Statement under the 1933 Act (a “Public Offering”),
and if the Company’s Registration Statement relating to such Public Offering (“Registration Statement”) has been declared effective by the Securities and Exchange Commission, then the initial “Price to Public”
specified in the final prospectus with respect to such offering multiplied by the number of shares of Common Stock into which each share of Preferred Stock is then convertible. 

(ii) If the net issue election is not made in connection with and contingent upon a Public Offering, then as follows: 

(a) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing or last
reported sale prices of the Common Stock on such exchange over the five day period ending five trading days prior to the Determination Date, and the fair market value of the Preferred Stock (other than Common Stock) shall be deemed to be such fair
market value of the Common Stock multiplied by the number of shares of Common Stock into which each share of Preferred Stock (other than Common Stock) is then convertible; 

(b) If otherwise traded in an over-the-counter market, the fair market value of the Common Stock shall be deemed to be the average of the
closing ask prices of the Common Stock over the five day period ending five trading days prior to the Determination Date, and the fair market value of the Preferred Stock (other than Common Stock) shall be deemed to be such fair market value of the
Common Stock multiplied by the number of shares of Common Stock into which each share of Preferred Stock (other than Common Stock) is then convertible; and 

(c) If there is no public market for the Common Stock, then Fair Market Value shall be determined in good faith by the Company’s Board of
Directors. 

  
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 5. Partial Exercise. This Warrant may be exercised in part, and the Holder shall be
entitled to receive a new warrant, which shall be dated as of the date of this Warrant, covering the number of shares in respect of which this Warrant shall not have been exercised. 

6. Fractional Shares. In no event shall any fractional share of Preferred Stock be issued upon any exercise, of this Warrant. If, upon
exercise of this Warrant in its entirety, the Holder would, except as provided in this Section 6, be entitled to receive a fractional share of Preferred Stock, then the Company shall make a cash payment therefor upon the basis of the Purchase
Price then in effect. 
 7. Expiration Date; Automatic Exercise. This Warrant shall expire at the close of business on
February 28, 2024 or pursuant to Section 11, and shall be void thereafter (the “Expiration Date”). Notwithstanding the foregoing, if upon such date the Fair Market Value for a share of Preferred Stock exceeds the Purchase
Price, this Warrant shall automatically be deemed to be exercised in full pursuant to the provisions of Section 4 hereof, without any further action on behalf of the Holder, immediately prior to the time this Warrant would otherwise expire
pursuant to the preceding sentence. 
 8. Reserved Shares; Valid Issuance. The Company covenants that it will at all times from and
after the date hereof reserve and keep available such number of its authorized shares of Preferred Stock and Common Stock free from all preemptive or similar rights therein, as will be sufficient to permit, respectively, the exercise of this Warrant
in full and the conversion into shares of Common Stock of all shares of Preferred Stock receivable upon such exercise. The Company further covenants that such shares as may be issued pursuant to such exercise and/or conversion will, upon issuance,
be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof 

9. Stock Splits and Dividends. If after the date hereof the Company shall subdivide the Preferred Stock, by split-up or otherwise, or
combine the Preferred Stock, or issue additional shares of Preferred Stock in payment of a stock dividend on the Preferred Stock, the number of shares of Preferred Stock issuable on the exercise of this Warrant shall forthwith be proportionately
increased in the case of a subdivision or stock dividend, or proportionately decreased in the case of a combination, and the Purchase Price shall forthwith be proportionately decreased in the case of a subdivision or stock dividend, or
proportionately increased in the case of a combination. 
 10. Adjustments for Diluting Issuances. The antidilution rights applicable
to the Preferred Stock of the Company are set forth in the Amended and Restated Articles of Incorporation, as amended from time to time (the “Articles”), a true and complete copy in its current form which is attached hereto as
Exhibit A. Such rights shall not be restated, amended or modified in any manner which affects the Holder differently than the holders of Preferred Stock without such Holder’s prior written consent. The Company shall promptly
provide the Holder hereof with any restatement, amendment or modification to the Articles promptly after the same has been made. 
 11.
Acquisitions and Reclassifications. 
 (a) If after the date hereof the Company shall enter into any Reorganization (as
hereinafter defined) other than a Cash/Public Acquisition (as defined below), then, as a condition of such Reorganization, lawful provisions shall be made, and duly executed documents evidencing the same from the Company or its successor shall be
delivered to the Holder, so that the Holder shall thereafter have the right to purchase, at a total price not to exceed that payable upon the exercise of this Warrant in full, the kind and amount of shares of stock and other securities and property
receivable upon such Reorganization by a holder of the number of shares of Preferred Stock which might have been purchased by the Holder immediately prior to such Reorganization, and in any such case appropriate provisions shall be made with respect
to the rights and interest of the Holder to the end that the provisions hereof (including without limitation, provisions for the adjustment of the Purchase Price and the number of shares issuable hereunder and the provisions relating to the net
issue election) shall thereafter be applicable in relation to any shares of stock or other securities and property thereafter deliverable upon exercise hereof. 

Notwithstanding the other provisions of this Section 11, in the event of an Acquisition in which the consideration to be received by the
Company’s shareholders consists solely of cash, solely of Marketable Securities or a combination of cash and Marketable Securities (a “Cash/Public Acquisition”), (i) Holder shall exercise this Warrant pursuant to
Section 3 and/or 4 and such exercise will be deemed effective immediately prior to and contingent upon the 

  
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consummation of such Acquisition, (ii) this Warrant shall be automatically exercised upon the consummation of such Acquisition in accordance with the provisions of Section 7 or
(iii) this Warrant will expire immediately prior to the consummation of such Acquisition. As used in this Warrant, “Marketable Securities” means securities meeting all of the following requirements: (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 listed on The NASDAQ Stock Market or the New York Stock Exchange, and (iii) Holder would be able to publicly re-sell without restrictions and immediately 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. 

(b) For the purposes of this Warrant, “Acquisition” is defined as (A) any consolidation or merger of the Company with or
into any other corporation or other entity or person, or any other corporate reorganization, other than (i) any such consolidation, merger or reorganization in which the shares of capital stock of the Company immediately prior to such
consolidation, merger or reorganization, continue to represent a majority of the voting power of the surviving entity (or, if the surviving entity is a wholly owned subsidiary, its parent) immediately after such consolidation, merger or
reorganization, or (ii) any merger effected exclusively for the purpose of changing the domicile of the Company; or (B) a sale, lease, exclusive license or other disposition of all or substantially all of the assets of the Company (which
includes the exclusive, irrevocable licensing of all or substantially all of the Company’s intellectual property to a third party). 
 For the purposes
of this Section 11, “Reorganization” shall mean a Reclassification (as hereinafter defined) or an Acquisition. The term “Reclassification” shall include, without limitation, any reclassification, capital
reorganization or change of the Preferred Stock (other than as a result of a subdivision, combination or stock dividend provided for in Section 9 hereof). 

12. Certificate of Adjustment. Whenever the Purchase Price is adjusted, as herein provided, the Company shall promptly deliver to the
Holder a certificate of the Company’s chief financial officer setting forth the Purchase Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. 

13. Notices of Record Date, Etc. In the event of: 

(a) any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to subscribe for, purchase, sell or otherwise acquire or dispose of any shares of stock of any class or any other securities or property, or to receive any other right; 

(b) any Reclassification or Acquisition; or 

(c) any voluntary or involuntary dissolution, liquidation or winding-up of the Company; 

then in each such event the Company will provide or cause to be provided to the Holder a written notice thereof. Such notice shall be provided at least ten
(10) calendar days prior to the date specified in such notice on which any such action is to be taken. 
 14. Representations,
Warranties and Covenants. This Warrant is issued and delivered by the Company and accepted by each Holder on the basis of the following representations, warranties and covenants made by the Company: 

(a) The Company has all necessary authority to issue, execute and deliver this Warrant and to perform its obligations hereunder. This Warrant
has been duly authorized issued, executed and delivered by the Company and is the valid and binding obligation of the Company, enforceable in accordance with its terms. 

  
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 (b) The shares of Preferred Stock issuable upon the exercise of this Warrant have been duly
authorized and reserved for issuance by the Company and, when issued in accordance with the terms hereof, will be validly issued, fully paid and nonassessable. 

(c) The issuance, execution and delivery of this Warrant do not, and the issuance of the shares of Preferred Stock upon the exercise of this
Warrant in accordance with the terms hereof will not, (i) violate or contravene the Company’s Articles or by-laws, or any law, statute, regulation, rule, judgment or order applicable to the Company, (ii) violate, contravene or result
in a breach or default under any contract, agreement or instrument to which the Company is a party or by which the Company or any of its assets are bound or (iii) require the consent or approval of or the filing of any notice or registration
with any person or entity. 
 15. Amendment. The terms of this Warrant may be amended, modified or waived only with the written
consent of the Holder and the Company. 
 16. Representations and Covenants of the Holder. This Warrant has been entered into by the
Company in reliance upon the following representations and covenants of the Holder, which by its execution hereof the Holder hereby confirms: 

(a) Investment Purpose. The right to acquire Preferred Stock or the Preferred Stock issuable upon exercise of the Holder’s rights
contained herein will be acquired for investment and not with a view to the sale or distribution of any part thereof, and the Holder has no present intention of selling or engaging in any public distribution of the same except pursuant to a
registration or exemption. 
 (b) Accredited Investor. Holder is an “accredited investor” within the meaning of the
Securities and Exchange Rule 501 of Regulation D, as presently in effect. 
 (c) Private Issue. The Holder understands
(i) that the Preferred Stock issuable upon exercise of the Holder’s rights contained herein is not registered under the 1933 Act or qualified under applicable state securities laws on the ground that the issuance contemplated by this
Warrant will be exempt from the registration and qualifications requirements thereof, and (ii) that the Company’s reliance on such exemption is predicated on the representations set forth in this Section 16. 

(d) Financial Risk. The Holder has such knowledge and experience in financial and business matters as to be capable of evaluating the
merits and risks of its investment and has the ability to bear the economic risks of its investment. 
 17. Notices, Transfers, Etc.

 (a) Any notice or written communication required or permitted to be given to the Holder may be given by certified mail or delivered to
the Holder at the address most recently provided by the Holder to the Company. 
 (b) Subject to compliance with applicable federal and
state securities laws, this Warrant may be transferred by the Holder with respect to any or all of the shares purchasable hereunder. Upon surrender of this Warrant to the Company, together with the assignment notice annexed hereto duly executed, for
transfer of this Warrant as an entirety by the Holder, the Company shall issue a new warrant of the same denomination to the assignee. Upon surrender of this Warrant to the Company, together with the assignment hereof properly endorsed, by the
Holder for transfer with respect to a portion of the shares of Preferred Stock purchasable hereunder, the Company shall issue a new warrant to the assignee, in such denomination as shall be requested by the Holder hereof, and shall issue to such
Holder a new warrant covering the number of shares in respect of which this Warrant shall not have been transferred. 
 (c) In case this
Warrant shall be mutilated, lost, stolen or destroyed, the Company shall issue a new warrant of like tenor and denomination and deliver the same (i) in exchange and substitution for and upon surrender and cancellation of any mutilated Warrant,
or (ii) in lieu of any Warrant lost, stolen or destroyed, upon receipt of an affidavit of the Holder or other evidence reasonably satisfactory to the Company of the loss, theft or destruction of such Warrant. 

  
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 18. No Impairment. The Company will not, by amendment of its Articles or through any
reclassification, capital reorganization, consolidation, merger, sale or conveyance of assets, dissolution, liquidation, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance of performance of any of the
terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holder. 

19. Governing Law. The provisions and terms of this Warrant shall be governed by and construed in accordance with the internal laws of
the State of California without giving effect to its principles regarding conflicts of laws. 
 20. Successors and Assigns. This
Warrant shall be binding upon the Company’s successors and assigns and shall inure to the benefit of the Holder’s successors, legal representatives and permitted assigns. 

21. Public Offering. If the Company shall effect a firm commitment underwritten Public Offering of shares of Common Stock which results
in the conversion of the Preferred Stock into Common Stock pursuant to the Company’s Articles in effect immediately prior to such offering, then, effective upon such conversion, this Warrant shall change from the right to purchase shares of
Preferred Stock to the right to purchase shares of Common Stock, and the Holder shall thereupon have the right to purchase, at a total price equal to that payable upon the exercise of this Warrant in full, the number of shares of Common Stock which
would have been receivable by the Holder upon the exercise of this Warrant for shares of Preferred Stock immediately prior to such conversion of such shares of Preferred Stock into shares of Common Stock, and in such event appropriate provisions
shall be made with respect to the rights and interest of the Holder to the end that the provisions hereof (including, without limitation, the provisions for the adjustment of the Purchase Price and of the number of shares purchasable upon exercise
of this Warrant and the provisions relating to the net issue election) shall thereafter be applicable to any shares of Common Stock deliverable upon the exercise hereof. 

22. Counterparts; Facsimile/Electronic Signatures. This Warrant may be executed in counterparts, all of which together shall constitute
one and the same agreement. Any signature page delivered electronically or by facsimile shall be binding to the same extent as an original signature page with regards to any agreement subject to the terms hereof or any amendment hereto. 

  
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	INVUITY, INC.
		
	By:		 /s/ Philip Sawyer

	Name:  Philip Sawyer
	Title:  Chief Executive Officer


 (Signature page to Warrant — HCRP) 

  








 
			
	
	HOLDER:
	
	HEALTHCARE ROYALTY PARTNERS II, L.P.
	
	By: HealthCare Royalty GP II, LLC, its General Partner
		
	By:		 /s/ Gregory B. Brown

	Name:   Gregory B. Brown
	Title:   Founding Managing Director


 (Signature page to Warrant — HCRP)