Corindus Vascular Robotics, Inc. 8-K


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 AS SET FORTH IN SECTIONS 5.3 AND 5.4 BELOW, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND LAWS OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER, SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER IS EXEMPT FROM SUCH REGISTRATION.


 


WARRANT TO PURCHASE STOCK


 


Company: Corindus Vascular Robotics, Inc., a Delaware corporation





Number of Shares: As set forth in Paragraph A(1) below 





Type/Series of Stock: Common Stock, $0.0001 par value per share





Warrant Price: As set forth in Paragraph A(2) below





Issue Date: [_____]





Expiration Date: [_____]    See also Section 5.1(b).





Credit Facility:    This Warrant to Purchase
Stock (“Warrant”) is issued in connection with that certain Loan and Security Agreement (Term Loan) of
even date herewith among Silicon Valley Bank, Solar Capital Ltd. and the Company (as amended and/or modified and in effect from
time to time, the “Loan Agreement”).


 


THIS WARRANT CERTIFIES THAT,
for good and valuable consideration, [_____] (together with any successor or permitted assignee or transferee of this Warrant or
of any shares issued upon exercise hereof, “Holder”) is entitled to purchase up to such number of fully
paid and non-assessable shares of the above-stated Type/Series of Stock (the “Class”) of the above-named
company (the “Company”) as determined pursuant to Paragraph A(1) below, at a purchase price per share
equal to the Applicable Warrant Price (as defined below), subject to the provisions and upon the terms and conditions set forth
in this Warrant.


 


A.           Number
of Shares; Applicable Warrant Price


 


(1)          Number
of Shares. Upon the making of each Term Loan (as defined in the Loan Agreement) to the Company, this Warrant automatically
shall become exercisable for such number of shares of the Class as shall equal (a)(i) [_____], multiplied by (ii) the amount of
such Term Loan, divided by (b) the Applicable Warrant Price in effect on and as of the date of such Term Loan, subject to adjustment
thereafter from time to time in accordance with the provisions of this Warrant. All shares for which this Warrant becomes exercisable
from time to time pursuant to this Paragraph A(1), and as may be adjusted from time to time in accordance with the provisions of
this Warrant, are referred to herein cumulatively and collectively as the “Shares.”


 


(2)          Applicable
Warrant Price. With respect to each Share for which this Warrant becomes exercisable pursuant to Paragraph A(1) above, the
purchase price therefor (the “Applicable Warrant Price”) shall be the lower of (a) the average
of the closing prices for a share of the Class, as such closing prices are reported on the Trading Market (as defined below), for
the ten (10) trading day period ending on the trading day immediately preceding the date on which the Term Loan in respect of which
this Warrant became exercisable for such Share was made, and (b) the closing price for a share of the Class reported on the Trading
Market for the trading day immediately preceding the date on which the Term Loan in respect of which this Warrant became exercisable
for such Share was made, subject to adjustment thereafter from time to time in accordance with the provisions of this Warrant.
As used in this Warrant, “Warrant Price” shall mean, with respect to any Share, the Applicable Warrant
Price therefor as determined pursuant to this Paragraph A(2) and as adjusted from time to time in accordance with the provisions
of this Warrant.


 



     


    


    

 


SECTION 1. EXERCISE.


 


1.1          Method
of Exercise. Holder may at any time and from time to time exercise this Warrant, in whole or in part, by delivering to the
Company the original of this Warrant together with a duly executed Notice of Exercise in substantially the form attached hereto
as Appendix 1 and, unless Holder is exercising this Warrant pursuant to a cashless exercise set forth in Section 1.2, a check,
wire transfer of same-day funds (to an account designated by the Company), or other form of payment acceptable to the Company for
the aggregate Warrant Price for the Shares being purchased.


 


1.2          Cashless
Exercise. On any exercise of this Warrant, in lieu of payment of the aggregate Warrant Price in the manner as specified in
Section 1.1 above, but otherwise in accordance with the requirements of Section 1.1, Holder may elect to receive Shares equal to
the value of this Warrant, or portion hereof as to which this Warrant is being exercised. Thereupon, the Company shall issue to
the Holder such number of fully paid and non-assessable Shares as are computed using the following formula:


 


X = Y(A-B)/A


 


where:


 


		X =	the number of Shares to be issued to the Holder;



 


		Y =	the number of Shares with respect to which this Warrant is being exercised (inclusive of the Shares
surrendered to the Company in payment of the aggregate Warrant Price);



 


		A =	the Fair Market Value (as determined pursuant to Section 1.3 below) of one Share; and



 


		B =	the Warrant Price.



 


1.3          Fair
Market Value. If shares of the Class are then traded or quoted on a nationally recognized securities exchange, inter-dealer
quotation system or over-the-counter market (a “Trading Market”), the fair market value of a Share shall
be the closing price or last sale price of a share of the Class reported for the Business Day immediately before the date on which
Holder delivers this Warrant together with its Notice of Exercise to the Company. If shares of the Class are not then traded in
a Trading Market, the Board of Directors of the Company shall determine the fair market value of a Share in its reasonable good
faith judgment.


 


1.4          Delivery
of Certificate and New Warrant. Within a reasonable time after Holder exercises this Warrant in the manner set forth in Section
1.1 or 1.2 above, the Company shall deliver to Holder a certificate representing the Shares issued to Holder upon such exercise
(which certificate may be in the form of an electronic certificate or DTC entry, to the extent used by the Company at the time
of such exercise) and, if this Warrant has not been fully exercised and has not expired, a new warrant of like tenor representing
the Shares not so acquired.


 



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


 


1.6          Treatment
of Warrant Upon Acquisition of Company.


 


(a)          Acquisition.
For the purpose of this Warrant, “Acquisition” means any transaction or series of related transactions
involving: (i) the sale, lease, exclusive license, or other disposition of all or substantially all of the assets of the Company;
(ii) any merger or consolidation of the Company into or with another person or entity (other than a merger or consolidation effected
exclusively to change the Company’s domicile), or any other corporate reorganization, in which the stockholders of the Company
in their capacity as such immediately prior to such merger, consolidation or reorganization, own less than a majority of the Company’s
(or the surviving or successor entity’s) outstanding voting power immediately after such merger, consolidation or reorganization
(or, if such Company stockholders beneficially own a majority of the outstanding voting power of the surviving or successor entity
as of immediately after such merger, consolidation or reorganization, such surviving or successor entity is not the Company); or
(iii) any sale or other transfer by the stockholders of the Company of shares representing at least a majority of the Company’s
then-total outstanding combined voting power.


 


(b)          Treatment
of Warrant at Acquisition. In the event of an Acquisition in which the consideration to be received by the Company’s
stockholders consists solely of cash, solely of Marketable Securities or a combination of cash and Marketable Securities (a “Cash/Public
Acquisition”), and the fair market value of one Share as determined in accordance with Section 1.3 above would
be greater than the Warrant Price in effect on such date immediately prior to such Cash/Public Acquisition, and Holder has not
exercised this Warrant pursuant to Section 1.1 above as to all Shares, then this Warrant shall automatically be deemed to be Cashless
Exercised pursuant to Section 1.2 above as to all Shares effective immediately prior to and contingent upon the consummation
of a Cash/Public Acquisition. In connection with such Cashless Exercise, Holder shall be deemed to have restated each of the representations
and warranties in Section 4 of the Warrant as of the date thereof and the Company shall promptly notify the Holder of the
number of Shares (or such other securities) issued upon exercise. In the event of a Cash/Public Acquisition where the fair market
value of one Share as determined in accordance with Section 1.3 above would be less than the Warrant Price in effect immediately
prior to such Cash/Public Acquisition, then this Warrant will expire immediately prior to the consummation of such Cash/Public
Acquisition.


 


(c)           Upon
the closing of any Acquisition other than a Cash/Public Acquisition, the acquiring, surviving or successor entity shall assume
the obligations of this Warrant, and this Warrant shall thereafter be exercisable for the same securities and/or other property
as would have been paid for the Shares issuable upon exercise of the unexercised portion of this Warrant as if such Shares were
outstanding on and as of the closing of such Acquisition, subject to further adjustment from time to time in accordance with the
provisions of this Warrant.


 



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(d)           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 traded in a Trading Market, and (iii) following the closing of such Acquisition, Holder would not be restricted
from publicly re-selling 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, except to the extent that any such
restriction (x) arises solely under federal or state securities laws, rules or regulations, and (y) does not extend beyond six
(6) months from the closing of such Acquisition.


 


SECTION 2. ADJUSTMENTS TO THE SHARES AND WARRANT
PRICE.


 


2.1          Stock
Dividends, Splits, Etc. If the Company declares or pays a dividend or distribution on the outstanding shares of the Class payable
in additional shares of the Class or other securities or property (other than cash), then upon exercise of this Warrant, for each
Share acquired, Holder shall receive, without additional cost to Holder, the total number and kind of securities and property which
Holder would have received had Holder owned the Shares of record as of the date the dividend or distribution occurred. If the Company
subdivides the outstanding shares of the Class by reclassification or otherwise into a greater number of shares, the number of
Shares purchasable hereunder shall be proportionately increased and the Warrant Price shall be proportionately decreased. If the
outstanding shares of the Class are combined or consolidated, by reclassification or otherwise, into a lesser number of shares,
the Warrant Price shall be proportionately increased and the number of Shares shall be proportionately decreased.


 


2.2          Reclassification,
Exchange, Combinations or Substitution. Upon any event whereby all of the outstanding shares of the Class are reclassified,
exchanged, combined, substituted, or replaced for, into, with or by Company securities of a different class and/or series, then
from and after the consummation of such event, this Warrant will be exercisable for the number, class and series of Company securities
that Holder would have received had the Shares been outstanding on and as of the consummation of such event, and subject to further
adjustment thereafter from time to time in accordance with the provisions of this Warrant. The provisions of this Section 2.2 shall
similarly apply to successive reclassifications, exchanges, combinations, substitutions, replacements or other similar events.


 


2.3          No
Fractional Share. No fractional Share shall be issuable upon exercise of this Warrant and the number of Shares to be issued
shall be rounded down to the nearest whole Share. If a fractional Share interest arises upon any exercise of the Warrant, the Company
shall eliminate such fractional Share interest by paying Holder in cash the amount computed by multiplying the fractional interest
by (i) the fair market value (as determined in accordance with Section 1.3 above) of a full Share, less (ii) the then-effective
Warrant Price.


 


2.4          Notice/Certificate
as to Adjustments. Upon each adjustment of the Warrant Price, Class and/or number of Shares, the Company, at the Company’s
expense, shall notify Holder in writing within a reasonable time setting forth the adjustments to the Warrant Price, Class and/or
number of Shares and facts upon which such adjustment is based. The Company shall, upon written request from Holder, furnish Holder
with a certificate of its Chief Financial Officer, including computations of such adjustment and the Warrant Price, Class and number
of Shares in effect upon the date of such adjustment.


 



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SECTION 3. REPRESENTATIONS AND COVENANTS OF THE
COMPANY.


 


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


 


(a)          All
Shares which may be issued upon the exercise of this Warrant shall, upon issuance, be duly authorized, validly issued, fully paid
and non-assessable, and free of any liens and encumbrances except for restrictions on transfer provided for herein or under applicable
federal and state securities laws.


 


(b)          The
Company covenants that it shall at all times cause to be reserved and kept available out of its authorized and unissued capital
stock such number of shares of the Class and other securities as will be sufficient to permit the exercise in full of this Warrant.


 


3.2           Notice
of Certain Events. If the Company proposes at any time to:


 


(a) declare any dividend
or distribution upon the outstanding shares of the Class, whether in cash, property, stock, or other securities and whether or
not a regular cash dividend;


 


(b) offer for subscription
or sale pro rata to the holders of the outstanding shares of the Class any additional shares of any class or series of the Company’s
stock (other than pursuant to contractual pre-emptive rights);


 


(c) effect any reclassification,
exchange, combination, substitution, reorganization or recapitalization of the outstanding shares of the Class; or


 


(d) effect an Acquisition
or to liquidate, dissolve or wind up;


 


then, in connection with each such event, the Company
shall give Holder notice thereof at the same time and in the same manner as given to holders of the outstanding shares of the Class.


 


SECTION 4. REPRESENTATIONS, WARRANTIES OF THE
HOLDER.


 


The Holder represents and warrants to the Company
as follows:


 


4.1           Purchase for Own Account. This
Warrant and the Shares to be acquired upon exercise of this Warrant by Holder are being acquired for investment for 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 it has not been formed for the specific purpose of acquiring this Warrant or the Shares.


 


4.2           Disclosure of Information. Holder
is aware of the Company’s business affairs and financial condition and has received or has had full access to all the information
it considers necessary or appropriate to make an informed investment decision with respect to the acquisition of this Warrant and
its underlying securities. 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 acquire it without unreasonable effort or expense) necessary to verify
any information furnished to Holder or to which Holder has access.


 



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


 


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


 


4.5           The Act. Holder understands that
this Warrant and the Shares issuable upon exercise hereof have not been registered under the Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide nature of the Holder’s investment intent as expressed
herein. Holder understands that this Warrant and the Shares issued upon any exercise hereof must be held indefinitely unless subsequently
registered under the Act and qualified under applicable state securities laws, or unless exemption from such registration and qualification
are otherwise available. Holder is aware of the provisions of Rule 144 promulgated under the Act.


 


4.6           No Shareholder Rights.
Without limiting any provision of this Warrant, Holder agrees that as a Holder of this Warrant it will not have any rights (including,
but not limited to, voting rights) as a shareholder of the Company with respect to the Shares issuable hereunder unless and until
the exercise of this Warrant and then only with respect to the Shares issued on such exercise.


 


SECTION 5. MISCELLANEOUS.


 


5.1          Term;
Automatic Cashless Exercise Upon Expiration.


 


(a)          Term.
Subject to the provisions of Section 1.6 above, this Warrant is exercisable in whole or in part at any time and from time to time
on or before 6:00 PM, Pacific time, on the Expiration Date and shall be void thereafter.


 





(b)         Automatic
Cashless Exercise upon Expiration. In the event that, upon the Expiration Date, the fair market value of one Share as determined
in accordance with Section 1.3 above is greater than the Warrant Price in effect on such date, then this Warrant shall automatically
be deemed on and as of such date to be exercised pursuant to Section 1.2 above as to all Shares for which it shall not previously
have been exercised, and the Company shall, within a reasonable time, deliver a certificate representing the Shares issued upon
such exercise to Holder (which certificate may be in the form of an electronic certificate or DTC entry, to the extent used by
the Company at the time of such exercise).


 



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 5.2         Legends.   Each certificate
evidencing Shares shall be imprinted with a legend in substantially the following form:


 


THE SHARES EVIDENCED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES
LAWS OF ANY STATE AND, EXCEPT AS SET FORTH IN THAT CERTAIN WARRANT TO PURCHASE STOCK ISSUED BY THE ISSUER TO [_____] DATED [_____],
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND LAWS OR, IN THE OPINION
OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER, SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER IS EXEMPT FROM SUCH
REGISTRATION.


 


5.3          Compliance
with Securities Laws on Transfer. This Warrant and the Shares issued upon exercise of this Warrant may not be transferred or
assigned in whole or in part except in compliance with applicable federal and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to
the Company, as reasonably requested by the Company). The Company shall not require Holder to provide an opinion of counsel if
the transfer is to an affiliate of Holder, provided that such affiliate is an “accredited investor” as defined in Regulation
D promulgated under the Act. Additionally, the Company shall also not require an opinion of counsel if there is no material question
as to the availability of Rule 144 promulgated under the Act.


 


5.4          Transfer
Procedure. Subject to the provisions of Section 5.3 and upon providing the Company with written notice, Holder may transfer
all or part of this Warrant to any transferee, provided, however, in connection with any such transfer, 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); and provided
further, that any transferee of this Warrant shall agree in writing with the Company to be bound by all of the terms and conditions
of this Warrant.


 


5.5          Notices.
All notices and other communications hereunder from the Company to the Holder, or vice versa, shall be deemed delivered and effective
(i) when given personally, (ii) on the third (3rd) Business Day after being mailed by first-class registered or certified
mail, postage prepaid, (iii) upon actual receipt if given by facsimile or electronic mail and such receipt is confirmed in writing
by the recipient, or (iv) on the first Business Day following delivery to a reliable overnight courier service, courier fee prepaid,
in any case at such address as may have been furnished to the Company or Holder, as the case may be, in writing by the Company
or such Holder from time to time in accordance with the provisions of this Section 5.5. All notices to Holder shall be addressed
as follows until the Company receives notice of a change of address in connection with a transfer or otherwise:


 


[_____]





[_____]





[_____]





Attention:
[_____]





Email:
[_____]


 



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


 


Corindus Vascular Robotics,
Inc.





Attn: Chief Financial Officer





309 Waverley Oaks Road, Suite
105





Waltham, MA 02452





Telephone: (508) 653-3335





Facsimile:





Email:


 


With a copy (which shall not constitute
notice) to:


 





Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C.





Attn: Adam Davey





One Financial Center





Boston, MA 02111





Telephone: (617) 348-1667





Facsimile: (617) 542-2241





Email: [_____]


 


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


 


5.7          Attorneys’
Fees. In the event of any dispute between the parties concerning the terms and provisions of this Warrant, the party prevailing
in such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’
fees.


 


5.8          Counterparts;
Facsimile/Electronic Signatures. This Warrant may be executed in counterparts, all of which together shall constitute one and
the same agreement. 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 thereto.


 


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


 


5.10          Headings.
The headings in this Warrant are for purposes of reference only and shall not limit or otherwise affect the meaning of any provision
of this Warrant.


 


5.11          Business
Days. “Business
Day” is any day that is not a Saturday, Sunday or a day
on which banks in New York are closed.


 


[Remainder of page left blank intentionally]





[Signature page follows]


 



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IN WITNESS WHEREOF, the parties have caused this
Warrant to Purchase Stock to be executed by their duly authorized representatives effective as of the Issue Date written above.


 


	
        “COMPANY”

         

        CORINDUS VASCULAR ROBOTICS, INC.

         

        By: _________________________________

         

        Name:______________________________

        

        (Print)

         

        Title: 

         
	


	
        “HOLDER”

         

        [_____]

         

        By:_________________________________

         

        Name:______________________________

        

        (Print)

        

        Title: 

         
	 




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APPENDIX 1


 


NOTICE OF EXERCISE


 


1.          The
undersigned Holder hereby exercises its right to purchase ___________ shares of the Common/Series ______ Preferred [circle one]
Stock of __________________ (the “Company”) in accordance with the attached Warrant To Purchase Stock,
and tenders payment of the aggregate Warrant Price for such shares as follows:


 


		[   ]	check in the amount of $________ payable to order of the
Company enclosed herewith



 


		[   ]	Wire transfer of immediately available funds to the Company’s
account



 


		[   ]	Cashless Exercise pursuant to Section 1.2 of the Warrant



 


		[   ]	Other [Describe] __________________________________________



 


2.          Please
issue a certificate or certificates representing the Shares in the name specified below:


 


___________________________________________





Holder’s Name


___________________________________________





___________________________________________





(Address)


 


3.        By its execution below and
for the benefit of the Company, Holder hereby restates each of the representations and warranties in Section 4 of the Warrant to
Purchase Stock as of the date hereof.


 


HOLDER:





_________________________


 


By:_________________________


 


Name:________________________


 


Title:_________________________


 


(Date):_______________________





 



    Appendix 1