exv4w6



 





Exhibit 4.6



NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED
(I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
SECURITIES ACT OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS OR BLUE SKY LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY.




CARDICA, INC.




WARRANT TO PURCHASE COMMON STOCK




			
	Warrant No. ___
	 	           Original Issue Date: June ___, 2007





CARDICA, INC., a Delaware corporation (the “Company”), hereby certifies that, for value received,
                    
or its permitted registered assigns (the “Holder”), is entitled to purchase from
the Company up to a total of
                     shares of common stock, $0.001 par value per share (the
"Common Stock”), of the Company (each such share, a “Warrant Share” and all such shares, the
"Warrant Shares”) at an exercise price per share equal to $5.65 (as adjusted from time to time as
provided in Section 9 herein, the “Exercise Price”), at any time and from time to time on or after
the date that is six (6) months from the date hereof (the “Trigger Date”) and through and including
5:30 P.M., New York City time, on June ___, 2012 (the “Expiration Date”), and subject to the
following terms and conditions:



This Warrant (this “Warrant”) is one of a series of similar warrants issued pursuant to that
certain Securities Purchase Agreement, dated June 7, 2007, by and among the Company and the
Purchasers identified therein (the “Purchase Agreement”). All such warrants are referred to
herein, collectively, as the “Warrants.”



1. Definitions. In addition to the terms defined elsewhere in this Warrant, capitalized
terms that are not otherwise defined herein have the meanings given to such terms in the Purchase
Agreement.



2. Registration of Warrants. The Company shall register this Warrant, upon records to be
maintained by the Company for that purpose (the “Warrant Register”), in the name of the record
Holder (which shall include the initial Holder or, as the case may be, any registered assignee to
which this Warrant is permissibly assigned hereunder) from time to time. The Company may deem and
treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any
exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice
to the contrary.



3. Registration of Transfers. Subject to the restrictions on transfer set forth in Section
4.1 of the Purchase Agreement and compliance with all applicable securities laws, the Company shall
register the transfer of all or any portion of this Warrant in the Warrant Register, upon surrender
of this Warrant, with the Form of Assignment attached as Schedule 2 hereto duly completed
and signed, to the Company’s transfer agent or to the Company at its address specified in the




 









 




Purchase Agreement and delivery, at the request of the Company, of an opinion of counsel reasonably
satisfactory to the Company to the effect that the transfer of such portion of this Warrant may be
made pursuant to an available exemption from the registration requirements of the Securities Act
and all applicable state securities or blue sky laws and delivery by the transferee of a written
statement to the Company certifying that the transferee is an “accredited investor” as defined in
Rule 501(a) under the Securities Act and making the representations and certifications set forth in
Section 3.2(b), (c) and (d) of the Purchase Agreement, to the Company at its address specified in
the Purchase Agreement. Upon any such registration or transfer, a new warrant to purchase Common
Stock in substantially the form of this Warrant (any such new warrant, a “New Warrant”) evidencing
the portion of this Warrant so transferred shall be issued to the transferee, and a New Warrant
evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the
transferring Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed
the acceptance by such transferee of all of the rights and obligations of a Holder of a Warrant.



4. Exercise and Duration of Warrants.




     (a) All or any part of this Warrant shall be exercisable by the registered Holder at any time
and from time to time on or after the Trigger Date and through and including 5:30 P.M., New York
City time, on the Expiration Date. At 5:30 P.M., New York City time, on the Expiration Date, the
portion of this Warrant not exercised prior thereto shall be and become void and of no value and
this Warrant shall be terminated and no longer outstanding.



     (b) The Holder may exercise this Warrant by delivering to the Company (i) this Warrant and an
exercise notice, in the form attached as Schedule 1 hereto (the “Exercise Notice”),
appropriately completed and duly signed and (ii) payment of the Exercise Price for the number of
Warrant Shares as to which this Warrant is being exercised (which may take the form of a “cashless
exercise” if so indicated in the Exercise Notice and if a “cashless exercise” may occur at such
time pursuant to Section 10 below), and the date such items are delivered to the Company (as
determined in accordance with the notice provisions hereof) is an “Exercise Date.” The delivery by
(or on behalf of) the Holder of the Exercise Notice and the applicable Exercise Price as provided
above shall constitute the Holder’s certification to the Company that its representations contained
in Section 3.2(b), (c) and (d) of the Purchase Agreement are true and correct as of the Exercise
Date as if remade in their entirety (or, in the case of any transferee Holder that is not a party
to the Purchase Agreement, such transferee Holder’s certification to the Company that such
representations are true and correct as to such assignee Holder as of the Exercise Date). If the
Warrant Shares are to be issued free of all restrictive legends, the Company shall, upon the
written request of the Holder, use its best efforts to deliver, or cause to be delivered, Warrant
Shares hereunder electronically through The Depository Trust Company or another established
clearing corporation performing similar functions, if available; provided, that, the Company may,
but will not be required to, change its transfer agent if its current transfer agent cannot deliver
Warrant Shares electronically through such a clearing corporation.



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5. Delivery of Warrant Shares.




     (a) Upon exercise of this Warrant, the Company shall promptly (but in no event later than
three (3) Trading Days after the Exercise Date) issue or cause to be issued and cause to be
delivered to or upon the written order of the Holder and in such name or names as the Holder may
designate (provided that, if the Holder directs the Company to deliver a certificate for the
Warrant Shares in a name other than that of the Holder or an Affiliate of the Holder, it shall
deliver to the Company on the Exercise Date (i) if the Registration Statement is not effective, an
opinion of counsel reasonably satisfactory to the Company to the effect that the issuance of such
Warrant Shares in such other name may be made pursuant to an available exemption from the
registration requirements of the Securities Act and all applicable state securities or blue sky
laws or (ii) if the Registration Statement is effective, either an opinion of counsel reasonably
satisfactory to the Company to the effect that the issuance of such Warrant Shares in such other
name may be made pursuant to an available exemption from the registration requirements of the
Securities Act and all applicable state securities or blue sky laws or a Certificate of Subsequent
Sale in substantially the form attached as Exhibit I to the Purchase Agreement), a certificate for
the Warrant Shares issuable upon such exercise. The Holder, or any Person permissibly so designated
by the Holder to receive Warrant Shares, shall be deemed to have become the holder of record of
such Warrant Shares as of the Exercise Date. If the Warrant Shares are to be issued free of all
restrictive legends, the Company shall, upon the written request of the Holder, use its best
efforts to deliver, or cause to be delivered, Warrant Shares hereunder electronically through The
Depository Trust Company or another established clearing corporation performing similar functions,
if available; provided, that, the Company may, but will not be required to, change its transfer
agent if its current transfer agent cannot deliver Warrant Shares electronically through such a
clearing corporation.



     (b) If by the close of the third (3rd) Trading Day after delivery of this Warrant,
a properly completed Exercise Notice and payment of the Exercise Price for the number of Warrant
Shares as to which this Warrant is being exercised (which may take the form of a “cashless
exercise” if so indicated in the Exercise Notice and if a “cashless exercise” may occur at such
time pursuant to Section 10 below) the Company fails to deliver to the Holder the required number
of Warrant Shares in the manner required pursuant to Section 5(a), and if after such third
(3rd) Trading Day and prior to the receipt of such Warrant Shares, the Holder purchases
(in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a
sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise
(a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and
in the Holder’s sole discretion, either (1) pay in cash to the Holder an amount equal to the
Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common
Stock so purchased (the “Buy-In Price”), at which point the Company’s obligation to deliver such
certificate (and to issue such Warrant Shares) shall terminate or (2) promptly honor its obligation
to deliver to the Holder Warrant Shares and pay cash to the Holder in an amount equal to the excess
(if any) of the Buy-In Price over the product of (A) such number of Warrant Shares, times (B) the
closing bid price of a share of Common Stock on the date of receipt of a properly completed
Exercise Notice.



     (c) To the extent permitted by law, the Company’s obligations to issue and deliver Warrant
Shares in accordance with the terms hereof are absolute and unconditional, irrespective of any
action or inaction by the Holder to enforce the same, any waiver or consent with respect to any
provision hereof, the recovery of any judgment against any Person or any action to enforce the
same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other Person of any obligation to the Company or any



3









 




violation or alleged violation of law by the Holder or any other Person, and irrespective of any
other circumstance which might otherwise limit such obligation of the Company to the Holder in
connection with the issuance of Warrant Shares. Nothing herein shall limit the Holder’s right to
pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s
failure to timely deliver Common Stock upon exercise of this Warrant as required pursuant to the
terms hereof.



6. Charges, Taxes and Expenses. Issuance and delivery of certificates for shares of Common
Stock upon exercise of this Warrant shall be made without charge to the Holder for any issue or
transfer tax, transfer agent fee or other incidental tax or expense in respect of the issuance of
such certificates, all of which taxes and expenses shall be paid by the Company; provided, however,
that the Company shall not be required to pay any tax which may be payable in respect of any
transfer involved in the registration of any certificates for Warrant Shares or Warrants in a name
other than that of the Holder or an Affiliate thereof. The Holder shall be responsible for all
other tax liability that may arise as a result of holding or transferring this Warrant or receiving
Warrant Shares upon exercise hereof.



7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or destroyed, the
Company shall issue or cause to be issued in exchange and substitution for and upon cancellation
hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or destruction (in such case)
and, in each case, a customary and reasonable indemnity and surety bond, if requested by the
Company. Applicants for a New Warrant under such circumstances shall also comply with such other
reasonable regulations and procedures and pay such other reasonable third-party costs as the
Company may prescribe. If a New Warrant is requested as a result of a mutilation of this Warrant,
then the Holder shall deliver such mutilated Warrant to the Company as a condition precedent to the
Company’s obligation to issue the New Warrant.



8. Reservation of Warrant Shares. The Company covenants that it will reserve and keep
available out of the aggregate of its authorized but unissued and otherwise unreserved Common
Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this Warrant
as herein provided, the number of Warrant Shares which are initially issuable and deliverable upon
the exercise of this entire Warrant, free from preemptive rights or any other contingent purchase
rights of persons other than the Holder (taking into account the adjustments and restrictions of
Section 9). The Company covenants that all Warrant Shares so issuable and deliverable shall, upon
issuance and the payment of the applicable Exercise Price in accordance with the terms hereof, be
duly and validly authorized, issued and fully paid and nonassessable. The Company will take all
such action as may be reasonably necessary to assure that such shares of Common Stock may be issued
as provided herein without violation of any applicable law or regulation, or of any requirements of
any securities exchange or automated quotation system upon which the Common Stock may be listed.



9. Certain Adjustments. The Exercise Price and number of Warrant Shares issuable upon
exercise of this Warrant are subject to adjustment from time to time as set forth in this Section
9.




     (a) Stock Dividends and Splits. If the Company, at any time while this Warrant is
outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on any
class of capital stock that is payable in shares of Common Stock, (ii) subdivides its outstanding
shares of Common Stock into a larger number of shares, or (iii) combines its outstanding shares of
Common Stock into a smaller number of shares, then in each such case the



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Exercise Price shall be multiplied by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately before such event and the denominator of which shall
be the number of shares of Common Stock outstanding immediately after such event. Any adjustment
made pursuant to clause (i) of this paragraph shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or distribution, and
any adjustment pursuant to clause (ii) or (iii) of this paragraph shall become effective
immediately after the effective date of such subdivision or combination.




     (b) Pro Rata Distributions. If the Company, at any time while this Warrant is
outstanding, distributes to all holders of Common Stock (i) evidences of its indebtedness, (ii) any
security (other than a distribution of Common Stock covered by the preceding paragraph), or (iii)
any other asset (in each case, “Distributed Property”), then, upon any exercise of this Warrant
that occurs after the record date fixed for determination of stockholders entitled to receive such
distribution, the Holder shall be entitled to receive, in addition to the Warrant Shares otherwise
issuable upon such exercise (if applicable), the Distributed Property that such Holder would have
been entitled to receive in respect of such number of Warrant Shares had the Holder been the record
holder of such Warrant Shares immediately prior to such record date.



     (c) Fundamental Transactions. If, at any time while this Warrant is outstanding (i)
the Company effects any merger or consolidation of the Company with or into another Person, in
which the Company is not the survivor and the stockholders of the Company immediately prior to such
merger or consolidation do not own, directly or indirectly, at least fifty percent (50%) of the
voting securities of the surviving entity, (ii) the Company effects any sale of all or
substantially all of its assets or a majority of its Common Stock is acquired by a third party, in
each case, in one or a series of related transactions, (iii) any tender offer or exchange offer
(whether by the Company or another Person) is completed pursuant to which all or substantially all
of the holders of Common Stock are permitted to tender or exchange their shares for other
securities, cash or property, or (iv) the Company effects any reclassification of the Common Stock
or any compulsory share exchange pursuant to which the Common Stock is effectively converted into
or exchanged for other securities, cash or property (other than as a result of a subdivision or
combination of shares of Common Stock covered by Section 9(a) above) (in any such case, a
"Fundamental Transaction”), then the Company shall use its commercially reasonable efforts to
ensure that the Holder shall have the right thereafter to receive, upon exercise of this Warrant,
the same amount and kind of securities, cash or property as it would have been entitled to receive
upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such
Fundamental Transaction, the holder of the number of Warrant Shares then issuable upon exercise in
full of this Warrant without regard to any limitations on exercise contained herein (the “Alternate
Consideration”). In the event any successor to the Company, surviving entity or the corporation
purchasing or otherwise acquiring such assets or other appropriate corporation or entity does not
agree to assume this Warrant, then this Warrant shall be deemed exercised in full pursuant to
Section 10 hereof immediately prior to the closing of the Fundamental Transaction and the Holder
shall receive the Alternate Consideration at the closing of such Fundamental Transaction, and the
Warrant shall be terminated and of no further force or effect. The provisions of this paragraph
(c) shall similarly apply to subsequent transactions analogous to a Fundamental Transaction.



     (d) Number of Warrant Shares. Simultaneously with any adjustment to the Exercise Price
pursuant to paragraph (a) of this Section, the number of Warrant Shares that may be purchased upon
exercise of this Warrant shall be increased or decreased proportionately, so that after such
adjustment the aggregate Exercise Price payable hereunder for the increased or



5









 




decreased number of Warrant Shares shall be the same as the aggregate Exercise Price in effect
immediately prior to such adjustment.




     (e) Calculations. All calculations under this Section 9 shall be made to the nearest
cent or the nearest share, as applicable.



     (f) Notice of Adjustments. Upon the occurrence of each adjustment pursuant to this
Section 9, the Company at its expense will, at the written request of the Holder, promptly compute
such adjustment, in good faith, in accordance with the terms of this Warrant and prepare a
certificate setting forth such adjustment, including a statement of the adjusted Exercise Price and
adjusted number or type of Warrant Shares or other securities issuable upon exercise of this
Warrant (as applicable), describing the transactions giving rise to such adjustments and showing in
detail the facts upon which such adjustment is based. Upon written request, the Company will
promptly deliver a copy of each such certificate to the Holder and to the Company’s transfer agent.



     (g) Notice of Corporate Events. If, while this Warrant is outstanding, the Company (i)
declares a dividend or any other distribution of cash, securities or other property in respect of
its Common Stock, including, without limitation, any granting of rights or warrants to subscribe
for or purchase any capital stock of the Company or any subsidiary, (ii) authorizes or approves,
enters into any agreement contemplating or solicits stockholder approval for any Fundamental
Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs
of the Company, then, except if such notice and the contents thereof shall be deemed to constitute
material non-public information, the Company shall deliver to the Holder a notice of such
transaction at least ten (10) Trading Days prior to the applicable record or effective date on
which a Person would need to hold Common Stock in order to participate in or vote with respect to
such transaction; provided, however, that the failure to deliver such notice or any defect therein
shall not affect the validity of the corporate action required to be described in such notice.



     10. Payment of Exercise Price. The Holder shall pay the Exercise Price in immediately
available funds; provided, however, that if, on any Exercise Date there is not an effective
Registration Statement (as defined in that certain Registration Rights Agreement, of even date
herewith, by and among the Company and the several purchasers signatory thereto ) registering, or
no current prospectus available for, the resale of the Warrant Shares by the Holder, then the
Holder may, in its sole discretion, satisfy its obligation to pay the Exercise Price through a
“cashless exercise”, in which event the Company shall issue to the Holder the number of Warrant
Shares determined as follows:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	X
	 	=
	 	Y(A-B)	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	   	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	A	 	 	 	 	 	 	 	 	 	 






     where:


X = the number of Warrant Shares to be issued to the Holder.



Y = the total number of Warrant Shares with respect to which this Warrant is
being exercised.



A = the average of the Closing Sale Prices of the shares of Common Stock (as
reported by Bloomberg Financial Markets) for the five (5) Trading Days ending on
the date immediately preceding the Exercise Date.




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B = the Exercise Price then in effect for the applicable Warrant Shares at the

time of such exercise.



For purposes of this Warrant, “Closing Sale Price” means, for any security as of any date, the last
trade price for such security on the principal securities exchange or trading market for such
security, as reported by Bloomberg Financial Markets, or, if such exchange or trading market begins
to operate on an extended hours basis and does not designate the last trade price, then the last
trade price of such security prior to 4:00 P.M., New York City time, as reported by Bloomberg
Financial Markets, or if the foregoing do not apply, the last trade price of such security in the
over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg
Financial Markets, or, if no last trade price is reported for such security by Bloomberg Financial
Markets, the average of the bid prices, or the ask prices, respectively, of any market makers for
such security as reported in the “pink sheets” by Pink Sheets LLC. If the Closing Sale Price
cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing
Sale Price of such security on such date shall be the fair market value as mutually determined by
the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market
value of such security, then the Board of Directors of the Company shall use its good faith
judgment to determine the fair market value. The Board of Directors’ determination shall be
binding upon all parties absent demonstrable error. All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination or other similar transaction during
the applicable calculation period.



For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and
acknowledged that the Warrant Shares issued in a cashless exercise transaction shall be deemed to
have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to
have commenced, on the date this Warrant was originally issued pursuant to the Purchase Agreement
(provided that the Commission continues to take the position that such treatment is proper at the
time of such exercise).



11. No Fractional Shares. No fractional Warrant Shares will be issued in connection with
any exercise of this Warrant. In lieu of any fractional shares which would, otherwise be issuable,
the number of Warrant Shares to be issued shall be rounded down to the next whole number and the
Company shall pay the Holder in cash the fair market value (based on the Closing Sale Price) for
any such fractional shares.



12. Notices. Any and all notices or other communications or deliveries hereunder
(including, without limitation, any Exercise Notice) shall be in writing and shall be deemed given
and effective on the earliest of (i) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number specified in the Purchase Agreement prior to 5:30
P.M., New York City time, on a Trading Day, (ii) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the facsimile number
specified in the Purchase Agreement on a day that is not a Trading Day or later than 5:30 P.M., New
York City time, on any Trading Day, (iii) the Trading Day following the date of mailing, if sent by
nationally recognized overnight courier service specifying next business day delivery, or (iv) upon
actual receipt by the party to whom such notice is required to be given, if by hand delivery. The
address and facsimile number of a party for such notices or communications shall be as set forth in
the Purchase Agreement unless changed by such party by two (2) Trading Days’ prior notice to the
other party in accordance with this Section 12.



13. Warrant Agent. The Company shall serve as warrant agent under this Warrant. Upon thirty
(30) days’ notice to the Holder, the Company may appoint a new warrant agent. Any




7









 




corporation into which the Company or any new warrant agent may be merged or any corporation
resulting from any consolidation to which the Company or any new warrant agent shall be a party or
any corporation to which the Company or any new warrant agent transfers substantially all of its
corporate trust or shareholders services business shall be a successor warrant agent under this
Warrant without any further act. Any such successor warrant agent shall promptly cause notice of
its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder
at the Holder’s last address as shown on the Warrant Register.




14. Miscellaneous.




     (a) No Rights as a Stockholder. The Holder, solely in such Person’s capacity
as a holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the
holder of share capital of the Company for any purpose, nor shall anything contained in this
Warrant be construed to confer upon the Holder, solely in such Person’s capacity as the Holder of
this Warrant, any of the rights of a stockholder of the Company or any right to vote, give or
withhold consent to any corporate action (whether any reorganization, issue of stock,
reclassification of stock, consolidation, merger, amalgamation, conveyance or otherwise), receive
notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance
to the Holder of the Warrant Shares which such Person is then entitled to receive upon the due
exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as
imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or
otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company
or by creditors of the Company.



     (b) Successors and Assigns. Subject to the restrictions on transfer set
forth in this Warrant and in Section 4.1 of the Purchase Agreement, and compliance with applicable
securities laws, this Warrant may be assigned by the Holder. This Warrant may not be assigned by
the Company without the written consent of the Holder except to a successor in the event of a
Fundamental Transaction. This Warrant shall be binding on and inure to the benefit of the parties
hereto and their respective successors and assigns. Subject to the preceding sentence, nothing in
this Warrant shall be construed to give to any Person other than the Company and the Holder any
legal or equitable right, remedy or cause of action under this Warrant. This Warrant may be amended
only in writing signed by the Company and the Holder, or their successors and assigns.



     (c) Governing Law; Jurisdiction. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION
CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE
TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION
OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT.
EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING
SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED
MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY



8









 




AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THE PURCHASE AGREEMENT AND AGREES THAT SUCH
SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING
CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW. EACH PARTY HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.




     (d) Headings. The headings herein are for convenience only, do not constitute a part
of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.



     (e) Severability. In case any one or more of the provisions of this Warrant shall be
invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and
provisions of this Warrant shall not in any way be affected or impaired thereby, and the parties
will attempt in good faith to agree upon a valid and enforceable provision which shall be a
commercially reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Warrant.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,

SIGNATURE PAGE FOLLOWS]




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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its authorized
officer as of the date first indicated above.




	 	 	 	 	 	 	 
	 	 	CARDICA, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






 









 





SCHEDULE 1

FORM OF EXERCISE NOTICE




(To be executed by the Holder to purchase shares of Common Stock under the foregoing Warrant)




Ladies and Gentlemen:



(1) The undersigned is the Holder of Warrant No.                      (the “Warrant”) issued by Cardica,
Inc., a Delaware corporation (the “Company”). Capitalized terms used herein and not otherwise
defined herein have the respective meanings set forth in the Warrant.



(2) The undersigned hereby exercises its right to purchase                     Warrant Shares pursuant to
the Warrant.



(3) The Holder intends that payment of the Exercise Price shall be made as (check one):



o      Cash Exercise



o      “Cashless Exercise” under Section 10



(4) If the Holder has elected a Cash Exercise, the Holder shall pay the sum of $                     in
immediately available funds to the Company in accordance with the terms of the Warrant.



(5) Pursuant to this Exercise Notice, the Company shall deliver to the Holder                      Warrant
Shares in accordance with the terms of the Warrant.



(6) By its delivery of this Exercise Notice, the undersigned represents and warrants to the Company
that in giving effect to the exercise evidenced hereby the Holder will not beneficially own in
excess of the number of shares of Common Stock (as determined in accordance with Section 13(d) of
the Securities Exchange Act of 1934) permitted to be owned under Section 11 of the Warrant to which
this notice relates.




Dated:                    ,                     




	 	 	 	 	 
	Name of Holder:
	 	 	 	 
	 

	 	 

	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	 

	 	 	 	 
	Title:
	 	 	 	 
	 

	 	 	 	 




(Signature must conform in all respects to name of Holder as specified on the face of the Warrant)




 









 





SCHEDULE 2




CARDICA, INC.




FORM OF ASSIGNMENT




[To be completed and signed only upon transfer of Warrant]



FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
         (the “Transferee”) the right represented by the within
Warrant to purchase
            
shares of Common Stock of Cardica, Inc. (the “Company”) to which the within Warrant
relates and appoints             attorney to transfer said right on the
books of the Company with full power of substitution in the premises. In connection therewith, the
undersigned represents, warrants, covenants and agrees to and with the Company that:





	(a)	 	the offer and sale of the Warrant contemplated hereby is being made in compliance with
Section 4(1) of the United States Securities Act of 1933, as amended (the “Securities Act”) or
another valid exemption from the registration requirements of Section 5 of the Securities Act
and in compliance with all applicable securities laws of the states of the United States;






	(b)	 	the undersigned has not offered to sell the Warrant by any form of general solicitation or
general advertising, including, but not limited to, any advertisement, article, notice or
other communication published in any newspaper, magazine or similar media or broadcast over
television or radio, and any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising;






	(c)	 	the undersigned has read the Transferee’s investment letter included herewith, and to its
actual knowledge, the statements made therein are true and correct; and






	(d)	 	the undersigned understands that the Company may condition the transfer of the Warrant
contemplated hereby upon the delivery to the Company by the undersigned or the Transferee, as
the case may be, of a written opinion of counsel (which opinion shall be in form, substance
and scope customary for opinions of counsel in comparable transactions) to the effect that
such transfer may be made without registration under the Securities Act and under applicable
securities laws of the states of the United States.





Dated:                    ,                     




	 	 	 
	 

	 	 
	 

	 	(Signature must conform in all respects to name of
holder as specified on the face of the Warrant)
	 
	 	 
	 

	 	 
	 

	 	Address of Transferee
	 
	 	 
	 

	 	 





	 	 	 
	In the presence of: