exv4w9



 






Exhibit 4.9




WARRANT
TO PURCHASE STOCK



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.




	 	 	 
	Company:
	 	Volcano Therapeutics, Inc., a Delaware corporation
	Number of Shares:
	 	7,500
	Class of Stock:
	 	Series B Preferred
	Warrant Price:
	 	$3.00 per share
	Issue Date:
	 	July 18, 2004
	Expiration Date:
	 	July 18, 2011






     THIS
WARRANT CERTIFIES THAT, for the agreed upon value of $1.00 and for other good
and valuable consideration, SILICON VALLEY BANK (“Holder”)
is entitled to purchase the number of
fully paid and nonassessable shares of the class of securities (the “Shares”) of the company
(the “Company”) at the Warrant Price, all as set forth above and as adjusted pursuant to Article
2 of this Warrant, subject to the provisions and upon the terms and conditions set forth in
this Warrant.


ARTICLE 1.
EXERCISE.




          1.1
Method of Exercise. Holder may exercise this Warrant by delivering a duly
executed Notice of Exercise in substantially the form attached as Appendix 1 to the principal
office of the Company. Unless Holder is exercising the conversion
right set forth in Article
1.2, Holder shall also deliver to the Company a check, wire transfer (to an account designated by
the Company), or other from of payment acceptable to the Company for the aggregate Warrant Price
for the Shares being purchased.




          1.2
Conversion Right. In lieu of exercising this Warrant as specified in
Article 1.1, Holder may from time to time convert this Warrant, in whole or in part, into a
number of Shares determined by dividing (a) the aggregate fair market value of the Shares
or other securities otherwise issuable upon exercise of this Warrant minus the aggregate Warrant
Price of such Shares by (b) the fair market value of one Share. The fair market value of the
Shares shall be determined pursuant to Article 1.3.




          1.3
Fair Market Value. If the Company’s common stock is traded in a public
market and the shares are common stock, the fair market value of each Share shall be the
closing
price of a Share reported for the business day immediately before Holder delivers its Notice
of
Exercise to the Company (or in the instance where the Warrant is exercised immediately prior
to
the effectiveness of the Company’s initial public offering, the
“price to public” per share
price
specified in the final prospectus relating to such offering). If the Company’s common stock is
traded in a public market and the Shares are preferred stock, the fair market value of a Share
shall be the closing price of a share of the Company’s common stock reported for the business
day immediately before Holder delivers its Notice of Exercise to the Company (or, in the





 









 







instance where the Warrant is exercised immediately prior to the effectiveness of the Company’s
initial public offering, the initial “price to public” per share price specified in the final
prospectus relating to such offering), in both cases, multiplied by the number of shares of the
Company’s common stock into which a Share is convertible. If the Company’s common stock is not
traded in a public market, the Board of Directors of the Company shall determine fair market value
in its reasonable good faith judgment.




          1.4 Delivery of Certificate and New Warrant. Promptly after Holder exercises
or converts this Warrant and, if applicable, the Company receives payment of the aggregate
Warrant Price, the Company shall deliver to Holder certificates for the Shares acquired and,
if
this Warrant has not been fully exercised or converted and has not expired, a new Warrant
representing the Shares not so acquired.




          1.5 Replacement of Warrants. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case
of
loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in
form
and amount to the Company or, in the case of mutilation, or surrender and cancellation of this
Warrant, the Company shall execute and deliver, in lieu of this Warrant, a new warrant of like
tenor.




          1.6 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 in which the sole consideration is cash, either (a) Holder shall exercise its
conversion or purchase right under this Warrant and such exercise will be deemed effective immediately
prior to the consummation of such Acquisition or (b) if Holder elects not to exercise the Warrant,
this Warrant will expire upon the consummation of such Acquisition. The Company shall
provide the Holder with written notice of its request relating to the foregoing (together with such
reasonable information as the 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 that is not an Affiliate (as defined below) of the Company (a
“True Asset Sale”), either (a) Holder shall exercise its conversion or purchase right under this
Warrant and such exercise will be deemed effective immediately prior to the consummation of
such Acquisition or (b) if Holder elects not to exercise the Warrant, this Warrant will continue
until the Expiration Date if the Company continues as a going concern following the closing of
any such True Asset Sale. The Company shall provide the Holder with written notice of its
request relating to the foregoing (together with such reasonable information as the Holder may
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.





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C) Upon
the written request of the Company, Holder agrees that, in the event of a stock for
stock Acquisition of the Company by a publicly traded acquirer if, on the record date for the
Acquisition, the fair market value of the Shares (or other securities issuable upon exercise of
this
Warrant) is equal to or greater than 3 times the Warrant Price, Company may require the Warrant
to be deemed automatically exercised and the Holder shall participate in the Acquisition as a
holder of the Shares (or other securities issuable upon exercise of the Warrant) on the same terms
as other holders of the same class of securities of the Company.



D) In
connection with the closing of any Acquisition other than those particularly described
in subsections (A), (B) or (C) above, the successor entity shall assume the obligations of the
Warrant, and the 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.
Notwithstanding the foregoing, in the event the successor entity is not willing to assume the
obligations of this Warrant and Holder and Company mutually agree in good faith that it is
necessary in order to facilitate the closing of the Acquisition, this Warrant shall, immediately
prior to the closing of the Acquisition, be automatically converted pursuant to Section 5.8 below,
or, in the event the fair market value of one share (or other security issuable upon the exercise
hereof), is less than the exercise price in effect on such date, terminate.



As used
herein “Affiliate” shall mean any person or entity that owns or controls directly or
indirectly ten (10) percent or more of the stock of Company, any person or entity that controls or
is controlled by or is under common control with such persons or entities, and each of such
person’s or entity’s officers, directors, joint venturers or partners, as applicable.



ARTICLE 2.
ADJUSTMENTS TO THE SHARES.




          2.1
Stock Dividends, Splits, Etc. If the Company declares or pays a dividend
on the Shares payable in common stock, or other securities, then upon exercise of this
Warrant,
for each Share acquired, Holder shall receive, without cost to Holder, the total number and
kind
of securities to which Holder would have been entitled had Holder owned the Shares of record
as
of the date the dividend occurred. If the Company subdivides the
Shares by reclassification or
otherwise into a greater number of shares or takes any other action which increase the amount
of
stock into which the Shares are convertible, the number of shares purchasable hereunder shall
be
proportionately increased and the Warrant Price shall be proportionately decreased. If the
outstanding shares are combined or consolidated, by reclassification or otherwise, into a
lesser
number of shares, the Warrant Price shall be proportionately increased and the number of
Shares
shall be proportionately decreased.




          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





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such new securities or other property issuable upon exercise or conversion of this Warrant
as a result of such reclassification, exchange, substitution or other event that results in a
change of the number and/or class of securities issuable upon exercise or conversion of this
Warrant. The amendment to this Warrant shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article 2 including,
without limitation, adjustments to the Warrant Price and to the number of securities or property
issuable upon exercise of the new Warrant. The provisions of this Article 2.2 shall similarly apply
to successive reclassifications, exchanges, substitutions, or other
events.




          2.3
Adjustments for Diluting Issuances. The number of shares of common
stock issuable upon conversion of the Shares shall be subject to adjustment, from time to
time in
the manner set forth in the Company’s Certificate of Incorporation as if the Shares were
issued
and outstanding on and as of the date of any such required adjustment. The provisions set
forth
for the Shares in the Company’s Articles or Certificate (as applicable) of Incorporation
relating
to the above in effect as of the Issue Date may not be amended, modified or waived, without
the
prior written consent of Holder unless such amendment, modification or waiver affects the
rights associated with the Shares in the same manner as such amendment, modification or
waiver affects the rights associated with all other shares of the same series and class as
the
Shares granted to the Holder.




          2.4
No Impairment. The Company shall not, by amendment of its Certificate
of Incorporation or through a reorganization, transfer of assets, consolidation, merger,
dissolution, issue, or sale of securities or any other voluntary action, avoid or seek to
avoid the
observance or performance of any of the terms to be observed or performed under this Warrant
by the Company, but shall at all times in good faith assist in carrying out of all the
provisions of
this Article 2 and in taking all such action as may be necessary or appropriate to protect
Holder’s
rights under this Article against impairment.




          2.5
Fractional Shares. No fractional Shares shall be issuable upon exercise
or
conversion of the Warrant and the number of Shares to be issued shall be rounded down to the
nearest whole Share. If a fractional share interest arises upon any exercise or conversion of
the
Warrant, the Company shall eliminate such fractional share interest by paying Holder the
amount
computed by multiplying the fractional interest by the fair market value of a full Share.




          2.6
Certificate as to Adjustments. Upon each adjustment of the Warrant Price,
the Company shall promptly notify Holder in writing, and, at the Company’s expense, promptly
compute such adjustment, and furnish Holder with a certificate of its Chief Financial Officer
setting forth such adjustment and the facts upon which such adjustment is based. The Company
shall, upon written request, furnish Holder a certificate setting forth the Warrant Price in
effect
upon the date thereof and the series of adjustments leading to such Warrant Price.




ARTICLE
3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.




          3.1
Representations and Warranties. The Company represents and warrants to the
Holder as follows:




               (a) The initial Warrant Price referenced on the first page of this Warrant is equal to the
price per share at which shares of Series B Preferred Stock were issued in the Company’s July
2003 equity financing transaction relating to Series B Preferred
Stock of the Company.



               (b) All Shares which may be issued upon the exercise of the purchase right represented by
this Warrant, and all securities, if any, issuable upon conversion of the



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Shares, shall, upon issuance, be duly authorized, validly issued, fully paid and nonassessable, and
free of any liens and encumbrances except for restrictions on transfer provided for herein or under
applicable federal and state securities laws.




               (c) The Capitalization Table previously provided to Holder remains true and complete as
of the Issue Date.



          3.2
Notice of Certain Events. If the Company proposes at any time (a) to declare any
dividend or distribution upon any of its stock, whether in cash, property, stock, or other
securities and whether or not a regular cash dividend; (b) to offer for sale additional shares of
any class or series of the Company’s stock; (c) to effect any reclassification or recapitalization
of any of its stock; (d) to merge or consolidate with or into any other corporation, or sell,
lease, license, or convey all or substantially all of its assets, or to liquidate, dissolve or
wind up; or (e) offer holders of registration rights the opportunity to participate in an
underwritten public offering of the company’s securities for cash, then, in connection with each
such event, the Company shall give Holder: (1) at least 10 days prior written notice of the date
on which a record will be taken for such dividend, distribution, or subscription rights (and
specifying the date on which the holders of common stock will be entitled thereto) or for
determining rights to vote, if any, in respect of the matters referred to in (c) and (d) above;
(2) in the case of the matters referred to in (c) and (d) above at least 10 days prior written
notice of the date when the same will take place (and specifying the date on which the holders
of common stock will be entitled to exchange their common Stock for securities, or other property
deliverable upon the occurrence of such event); and (3) in the case of the matter referred to in
(e) above, the same notice as is given to the holders of such
registration rights.




          3.3
Registration Under Securities Act of 1933, as amended. The Company
agrees that the Shares or, if the Shares are convertible into common stock of the Company,
such
common stock, shall have certain incidental, or “Piggyback,” registration rights pursuant to
and
as set forth in the Company’s Amended and Restated Investor Rights Agreement dated April 24,
2002, as amended. The provisions set forth therein in effect as of or about the Issue Date may
not be amended, modified or waived without the prior written consent of Holder unless such
amendment, modification or waiver affects the rights associated with the Shares in the same
manner as such amendment, modification, or waiver affects the rights associated with all other
shares of the same series and class as the Shares granted to the Holder.




          3.4
No Stockholder Rights. Except as provided in this Warrant, the Holder
will not have any rights as a stockholder of the Company until the exercise of this Warrant.




ARTICLE
4. REPRESENTATIONS, WARRANTIES OF THE HOLDER. The Holder
represents and warrants to the Company as follows:




          4.1
Purchase for Own Account. This Warrant and the securities to be
acquired upon exercise of this Warrant by the Holder will be acquired for investment for the
Holder’s account, not as a nominee or agent, and not with a view to the public resale or
distribution within the meaning of the Act. Holder also represents that the Holder has not
been
formed for the specific purpose of acquiring this Warrant or the Shares.




          4.2
Disclosure of Information. The Holder has received or has had full access
to all the information it considers necessary or appropriate to make an informed investment
decision with respect to the acquisition of this Warrant and its underlying securities. The
Holder
further has had an opportunity to ask questions and receive answers from the Company regarding
the terms and conditions of the offering of this Warrant and its underlying securities and to
obtain additional information (to the extent the Company possessed
such information or could





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acquire it without unreasonable effort or expense) necessary to verify any information
furnished to the Holder or to which the Holder has access.




          4.3 Investment Experience. The Holder understands that the purchase of this
Warrant and its underlying securities involves substantial risk. The Holder has experience as an
investor in securities of companies in the development stage and acknowledges that the Holder can
bear the economic risk of such Holder’s investment in this Warrant and its underlying securities
and has such knowledge and experience in financial or business matters that the Holder is capable
of evaluating the merits and risks of its investment in this Warrant and its underlying securities
and/or has a preexisting personal or business relationship with the Company and certain of its
officers, directors or controlling persons of a nature and duration that enables the Holder to be
aware of the character, business acumen and financial circumstances
of such persons.




          4.4
Accredited Investor Status. The Holder is an “accredited
investor” within
the meaning of Regulation D promulgated under the Act.




          4.5
The Act. The Holder understands that this Warrant and the Shares issuable upon
exercise or conversion hereof have not been registered under the Act in reliance upon a specific
exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the
Holder’s investment intent as expressed herein. The Holder understands that this Warrant and the
Shares issued upon any exercise or conversion hereof must be held indefinitely unless subsequently
registered under the 1933 Act and qualified under applicable state securities laws, or unless
exemption from such registration and qualification are otherwise available.



ARTICLE 5. MISCELLANEOUS.




          5.1 Term: This Warrant is exercisable in whole or in part at any time and from time to time
on or before the Expiration Date.




          5.2 Legends. This Warrant and the Shares (and the securities issuable, directly
or indirectly, upon conversion of the Shares, if any) shall be imprinted with a legend in
substantially the following form:





THIS
WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE 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.



          5.3 Compliance with Securities Laws on Transfer. This Warrant and the Shares
issuable upon exercise of this Warrant (and the securities issuable, directly or indirectly, upon
conversion of the Shares, if any) may not be transferred or assigned in whole or in part without
compliance with applicable federal and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of investment representation letters and legal
opinions reasonably satisfactory to the Company, as reasonably requested by the




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Company). The Company shall not require Holder to provide an opinion of counsel if the
transfer is to Silicon Valley Bancshares (Holder’s parent
company) or any other affiliate of
Holder. Additionally, the Company shall also not require an opinion of counsel if there is no
material question as to the availability of 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 Holder’s notice of proposed sale.




          5.4 Transfer Procedure. Upon receipt by Holder of the executed Warrant,
Holder Will transfer all of this Warrant to Silicon Valley Bancshares, Holder’s parent
company,
by execution of an Assignment substantially in the form of Appendix 2. Subject to the
provisions of Article 5.3 and upon providing Company with written notice, Silicon Valley
Bancshares and any subsequent Holder may transfer all or part of this Warrant or the Shares
issuable upon exercise of this Warrant (or the Shares issuable directly or indirectly, upon
conversion of the Shares, if any) to any transferee, provided, however, in connection with any
such transfer, Silicon Valley Bancshares 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 Holder will surrender this Warrant to the Company for reissuance
to the transferee(s) (and Holder if applicable). The Company may refuse to transfer this
Warrant
or the Shares to any person who directly competes with the Company, unless, in either case,
the
stock of the Company is publicly traded.




          5.5 Notices. All notices and other communications from the Company to the
Holder, or vice versa, shall be deemed delivered and effective when given personally or mailed
by first-class registered or certified mail, postage prepaid, at such address as may have been
furnished to the Company or the Holder, as the case may (or on the first business day after
transmission by facsimile) be, in writing by the Company or such holder from time to time.
Effective upon receipt of the fully executed Warrant and the initial transfer described in
Article
5.4 above, all notices to the Holder shall be addressed as follows until the Company receives
notice of a change of address in connection with a transfer or
otherwise:




Silicon Valley Bancshares

Attn: Treasury Department 

3003 Tasman Drive, HA 200 

Santa Clara, CA 95054 

Telephone: 408-654-7400 

Facsimile: 408-496-2405




     Notice
to the Company shall be addressed as follows until the Holder receives notice of a
change in address:


Volcano Therapeutics, Inc., a Delaware corporation

Attn: CFO

2870 Kilgore Road

Rancho Cordova, California 95670

Facsimile: 916-638-8112

Telephone: 916-638-8008




          5.6 Waiver. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought.




          5.7 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




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entitled to collect from the other party all costs incurred in such dispute, including reasonable
attorney’s fees.




          5.8 Automatic Conversion upon Expiration. In the event that, upon the
Expiration Date, the fair market value of one Share (or other security issuable upon the
exercise
hereof) as determined in accordance with Section 1.3 above is greater than the Exercise Price
in
effect on such date, then this Warrant shall automatically be deemed on and as of such date to
be
converted pursuant to Section 1.2 above as to all Shares (or such other securities) for which
it
shall not previously have been exercised or converted, and the Company shall promptly deliver
a
certificate representing the Shares (or such other securities) issued upon such conversion to
the
Holder.




          5.9 Counterparts. This Warrant may be executed in counterparts, all of which
together shall constitute one and the same agreement.




          5.10
Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to its principles
regarding conflicts of law.




	 	 	 	 	 	 	 	 	 	 	 
	“COMPANY”	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	VOLCANO THERAPEUTICS, INC., a	 	 	 	VOLCANO THERAPEUTICS, INC., a	 	 
	Delaware corporation	 	 	 	Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ John Dahldorf
 

	 	 	 	By :
	 	/s/ John Dahldorf
 

	 	 
	Name:

	 	John Dahldorf
	 	 	 	Name:
	 	 John Dahldorf	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	(Print)
	 	 	 	 	 	(Print)	 	 
	Title:

	 	Chairman of the Board, President or
	 	 	 	Title :
	 	Chief Financial Officer, Secretary,	 	 
	 

	 	Vice President
	 	 	 	 	 	Assistant Treasurer or Assistant

Secretary	 	 






	 	 	 	 	 
	“HOLDER”	 	 
	 
	 	 	 	 
	SILICON VALLEY BANK	 	 
	 
	 	 	 	 
	By:

	 	/s/ Ryan Incorvaia
 

	 	 
	Name:

	 	Ryan Incorvaia	 	 
	 

	 	 	 	 
	 

	 	(Print)	 	 
	Title:

	 	Vice President	 	 
	 

	 	 	 	 





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