Exhibit 10.31
Warrant No. CA-[WarrantNo]/2000
Warrant to Purchase [NoofShares] Shares
SHARE PURCHASE WARRANT
To Purchase Shares of Common Stock (par value $0.001)
of
Cardima, Inc.
(a Delaware corporation)
Expires February 25, 2005
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF MAY BE
TRANSFERRED EXCEPT IN A TRANSACTION REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR WHICH IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THAT ACT.
VOID AFTER 5:00 P.M. NEW YORK TIME, ON FEBRUARY 25, 2005
CARDIMA, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
[NoofShares1] Shares of Common Stock
THIS CERTIFIES that, for good and valuable consideration received,
[NameofHolder] (the "Holder"), is entitled to subscribe for and purchase from
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Cardima, Inc., a Delaware corporation (the "Company"), upon the terms and
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conditions set forth herein, at any time or from time to time until 5:00 P.M.
New York City time on February 25, 2005 (the "Expiration Date"), all or any
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portion of [NoofShares2] shares of common stock of the Company, par value $0.001
per share, subject to adjustment as provided herein (the "Warrant Shares"), at a
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price of $2.48 per share, subject to adjustment as provided herein (as so
adjusted, the "Exercise Price"). This Warrant shall not be redeemable by the
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Company. The term "Shares" as used herein shall mean the Company's Common Stock,
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par value $0.001 per share. This Warrant is the Warrant or one of the Warrants
(collectively, including any Warrant issued upon the exercise or transfer of any
such Warrant, in whole or in part, the "Warrants") issued pursuant to various
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subscription agreements between the Company and the subscribers party thereto
entered into in connection with the offering (the "Offering") by the Company of
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up to 4,666,666 Shares, together with Warrants to purchase one Share for each
five Shares purchased in the Offering . As used herein, the term "this Warrant"
shall mean and include this Warrant and any Warrant or Warrants hereafter issued
as a consequence of the exercise or transfer of this Warrant in whole or in
part. No sale, transfer, assignment or hypothecation of this Warrant, or of the
Warrant Shares, will be permitted unless (a) a registration statement under the
Securities Act of 1933, as amended (the "Act"), with respect thereto has become
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effective and appropriate qualification or other action has been taken under
state securities laws, or (b) there is presented to the Company notice of the
proposed transfer and a legal opinion reasonably satisfactory to the Company
that such registration and qualification or other action is not required.
1. Method of Exercise. This Warrant may be exercised at any time
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prior to the Expiration Date, as to the whole or any lesser number of Warrant
Shares, by the surrender of this Warrant accompanied by a duly completed and
executed Notice of Exercise (in the form attached hereto) to the Company at its
office at 47266 Benicia Street, Freemont, California 94538, or at such other
place as may be designated in writing by the Company, together with a certified
or bank cashier's check payable to the order of the Company in an amount equal
to the Exercise Price multiplied by the number of Warrant
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Shares for which this Warrant is being exercised. In lieu of the payment of the
Exercise Price, the Holder shall have the right (but not the obligation), during
the Exercise Period, to require the Company to convert this Warrant, in whole or
in part, into Warrant Shares as provided for in this Section 1 (the "Conversion
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Right"). Upon exercise of the Conversion Right, the Company shall deliver to the
Holder (without payment by the Holder of the Exercise Price) that number of
Shares equal to the product of (i) the number of Warrant Shares issuable upon
exercise of the portion of the Warrant being converted, multiplied by (ii) the
quotient obtained by dividing (x) the value of the Warrant (on a per Warrant
Share basis immediately prior to the exercise of the Conversion Right) at the
time the Conversion Right is exercised (determined by subtracting the Exercise
Price from the "Conversion Market Price" (as defined below)) by (y) the
Conversion Market Price of one Share immediately prior to the exercise of the
Conversion Right. The Conversion Rights provided under this Section 1 may be
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exercised in whole or in part and at any time and from time to time while any
Warrants remain outstanding. In order to exercise the Conversion Right, the
Holder shall surrender to the Company, at its offices, this Warrant accompanied
by a duly completed and executed Conversion Notice (in the form attached
hereto). The presentation and surrender shall be deemed a waiver of the Holder's
obligation to pay all or any portion of the aggregate purchase price payable for
the Warrant Shares being issued upon such exercise of this Warrant. This Warrant
(or so much thereof as shall have been surrendered for exercise or conversion)
shall be deemed to have been exercised or converted, as the case may be,
immediately prior to the close of business on the day of surrender of this
Warrant for exercise or conversion in accordance with the foregoing provisions.
As promptly as practicable on or after the exercise or conversion date, as the
case may be, the Company shall issue and shall deliver to the Holder (i) a
certificate or certificates representing the largest number of whole Warrant
Shares which the Holder shall be entitled as a result of the exercise or
conversion, and (ii) if such Warrant is being exercised or converted in part
only, a new Warrant exercisable for the number of Warrant Shares equal to the
unconverted portion of the Warrant. Upon any exercise or conversion of this
Warrant, in lieu of any fractional Warrant Shares to which the Holder shall be
entitled, the Company shall pay to the Holder cash in accordance with the
provisions of Section 5(f) hereof. For purposes hereof, the term "Conversion
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Market Price" shall be the per share closing price of the Shares on the last
trading day immediately prior to the date on which the Conversion Right is
exercised, determined in accordance with the procedures set forth in the last
two sentences of Section 5(f).
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2. Issuance of Certificates. Upon each exercise of the Holder's
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rights to purchase Warrant Shares, the Holder shall be deemed to be the holder
of record of the Warrant Shares issuable upon such exercise, notwithstanding
that the transfer books of the Company shall then be closed or certificates
representing such Warrant Shares shall not then have been actually delivered to
the Holder. As soon as practicable after each such exercise of this Warrant, the
Company shall issue and deliver to the Holder a certificate or certificates for
the Warrant Shares issuable upon such exercise, registered in the name of the
Holder or its designee. If this Warrant shall be exercised in part only, upon
surrender of this Warrant for cancellation, the Company shall execute and
deliver a new Warrant evidencing the right of the Holder to purchase the balance
of the Warrant Shares subject to purchase hereunder.
3. Recording of Transfer. Any Warrants issued upon the transfer or
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exercise in part of this Warrant shall be numbered and shall be registered in a
Warrant
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Register as they are issued. The Company shall be entitled to treat the
registered holder of any Warrant on the Warrant Register as the owner in fact
thereof for all purposes and shall not be bound to recognize any equitable or
other claim to or interest in such Warrant on the part of any other person, and
shall not be liable for any registration or transfer of Warrants which are
registered or to be registered in the name of a fiduciary or the nominee of a
fiduciary unless made with the actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration or transfer, or
with the knowledge of such facts that its participation therein amounts to bad
faith. This Warrant shall be transferable only on the books of the Company upon
delivery thereof duly endorsed by the Holder or by the Holder's duly authorized
attorney or representative, or accompanied by proper evidence of succession,
assignment or authority to transfer. In all cases of transfer by an attorney,
executor, administrator, guardian or other legal representative, duly
authenticated evidence of his or its authority shall be produced. Upon any
registration of transfer, the Company shall deliver a new Warrant or Warrants to
the person entitled thereto. This Warrant may be exchanged, at the option of the
Holder hereof, for another Warrant, or other Warrants of different
denominations, of like tenor and representing in the aggregate the right to
purchase a like number of Warrant Shares, upon surrender to the Company or its
duly authorized agent. Notwithstanding the foregoing, the Company shall have no
obligation to cause this Warrant to be transferred on its books to any person
if, in the written opinion of counsel to the Company, such transfer does not
comply with the provisions of the Act and the rules and regulations thereunder.
4. Reservation of Shares. The Company shall at all times reserve and
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keep available out of its authorized and unissued Shares, solely for the purpose
of providing for the exercise of this Warrant, such number of shares of Shares
as shall, from time to time, be sufficient therefor. The Company covenants that
all Shares issuable upon exercise of this Warrant, upon receipt by the Company
of the full payment therefor, shall be validly issued, fully paid, nonassessable
and free of preemptive rights.
5. Exercise Price and Number of Warrant Shares Adjustments. Subject
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to the provisions of this Section 5, the Exercise Price in effect from time to
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time and the number of Warrant Shares purchasable upon the exercise of this
Warrant shall be subject to adjustment, as follows:
(a) In case the Company shall at any time after the date hereof (i)
declare a dividend or make a distribution on the outstanding Shares payable in
shares of its capital stock or securities convertible into or exchangeable for
capital stock, (ii) subdivide the outstanding Shares, (iii) combine the
outstanding Shares into a smaller number of shares, or (iv) issue any shares by
reclassification of the Shares (other than a change in par value, or from par
value to no par value, or from no par value to par value, but including any such
reclassification in connection with the consolidation or merger of the Company
with or into another corporation (other than a merger in which the Company is
the continuing corporation and which does not result in any reclassification or
change of the then outstanding Shares or other shares issuable upon exercise of
the Warrants)), then, in each case, the Exercise Price in effect, and the number
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of Shares issuable upon exercise of the Warrants outstanding, at the time of the
record date for such dividend or at the effective date of such subdivision,
combination or reclassification, shall be proportionately adjusted so that the
holders of the Warrants after such time shall be entitled to receive the
aggregate
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number and kind of Shares which, if such Warrants had been exercised immediately
prior to such time, such holders would have owned upon such exercise and
immediately thereafter been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification. Such adjustment shall be made
successively whenever any event listed above shall occur.
(b) In case the Company shall distribute to all holders of Shares
(including any such distribution made to the stockholders of the Company in
connection with a consolidation or merger in which the Company is the surviving
or continuing corporation) evidences of its indebtedness, cash or assets (other
than distributions and dividends payable in Shares), or rights, options or
warrants to subscribe for or purchase Shares or securities convertible into or
exchangeable for Shares, then, in each case, the Exercise Price shall be
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adjusted by multiplying the Exercise Price in effect immediately prior to the
record date for the determination of shareholders entitled to receive such
distribution by a fraction, the numerator of which shall be the Current Market
Price per Share (as determined pursuant to Section 5(f) hereof) on such record
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date, less the fair market value (as determined pursuant in good faith by the
Board of Directors of the Company, whose determination shall be conclusive
absent manifest error) of the portion of the evidences of indebtedness or assets
so to be distributed, or of such rights, options or warrants or convertible or
exchangeable securities, or the amount of such cash, applicable to one Share,
and the denominator of which shall be such Current Market Price per Share. Such
adjustment shall become effective at the close of business on such record date.
(c) (i) In the event that the Company shall sell or issue at any
time after the date hereof Shares (other than Excluded Stock, as defined below)
at a consideration per share less than the Exercise Price in effect immediately
prior to the time of such sale or issuance, then, upon such sale or issuance,
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the Exercise Price shall be reduced to an adjusted price (calculated to the
nearest cent) determined by dividing (i) the sum of (A) the total number of
shares of Stock Outstanding (as defined below) immediately prior to such sale or
issuance multiplied by the then-existing Exercise Price, plus (B) the aggregate
of the amount of all consideration, if any, received by the Company upon such
sale or issuance, by (ii) the total number of shares of Stock Outstanding
immediately after such sale or issuance.
In no event shall any such adjustment be made if it would increase the Exercise
Price in effect immediately prior to such adjustment, except as provided in
Section 5(c)(iv) and 5(c)(v) below.
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(ii) For purposes of this Section 5(c), the following definitions
shall apply: ------------
(A) "Convertible Securities" shall mean any indebtedness or equity
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securities convertible into or exchangeable for Shares.
(B) "Options" shall mean any rights, warrants or options to subscribe
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for or purchase Shares or Convertible Securities.
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(C) "Stock Outstanding" shall mean the aggregate of all Shares
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outstanding and all Shares issuable upon exercise of all outstanding Options and
conversion of all outstanding Convertible Securities.
(iii) For the purposes of this Section 5(c), the following provisions
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shall also be applicable:
(A) Cash Consideration. In case of the sale or issuance (otherwise
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than conversion or exchange of Convertible Securities) of additional Shares,
Options or Convertible Securities for cash, the consideration received by the
Company therefor shall be deemed to be the amount of cash received by the
Company for such Shares (or, if such Shares are offered by the Company for
subscription, the subscription price, or, if such Shares are sold to
underwriters or dealers for public offering without a subscription offering, the
public offering price), without deducting therefrom any compensation or discount
paid or allowed to underwriters or dealers or others performing similar services
or for any expenses incurred in connection therewith.
(B) Non-Cash Consideration. In case of the sale or issuance
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(otherwise than upon conversion or exchange of Convertible Securities) of
additional Shares, Options or Convertible Securities for a consideration other
than cash or a consideration a part of which shall be other than cash, the fair
value of such consideration as determined by the Board of Directors of the
Company in the good faith exercise of its business judgment, irrespective of the
accounting treatment thereof, shall be deemed to be the value, for purposes of
this Section 5(c), of the consideration other than cash received by the Company
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for such securities.
(C) Options and Convertible Securities. In case the Company shall in
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any manner issue or grant any Options or any Convertible Securities, the total
maximum number of Shares issuable upon the exercise of such Options or upon
conversion or exchange of the total maximum amount of such Convertible
Securities at the time such Convertible Securities first become convertible or
exchangeable shall (as of the date of issue or grant of such Options or, in the
case of the sale or issue of Convertible Securities (other than where the same
are issuable upon the exercise of Options), as of the date of such sale or
issue) be deemed to be issued and to be outstanding for the purpose of this
Section 5(c) and to have been issued for the sum of the amount (if any) paid for
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such Options or Convertible Securities and the amount (if any) payable upon the
exercise of such Options or upon conversion or exchange of such Convertible
Securities at the time such Convertible Securities first become convertible or
exchangeable; provided that, subject to the provisions of Section 5(c)(iv), no
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further adjustment of the Exercise Price shall be made upon the actual issuance
of any such Shares or Convertible Securities or upon the conversion or exchange
of any such Convertible Securities.
(iv) In the event that the purchase price provided for in any Option
referred to in subsection 5(c)(iii)(C) or the rate at which any Convertible
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Securities referred to in subsection 5(c)(iii)(C) are convertible into or
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exchangeable for Shares shall change at any time or any additional consideration
shall be payable in connection with the exercise of any Option or the conversion
or exchange of any Convertible Securities (other than under or by reason of
provisions designed to protect against dilution upon the
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occurrence of events of the type described in this Section 5), then, for
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purposes of any adjustment required by Section 5(c), the Exercise Price in
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effect at the time of such event shall forthwith be readjusted to the Exercise
Price that would have been in effect at such time had such Options or
Convertible Securities still outstanding provided for such changed purchase
price, conversion rate or additional consideration, as the case may be, at the
time initially granted, issued or sold; provided, that if such readjustment is
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an increase in the Exercise Price, such readjustment shall not exceed the amount
(as adjusted by Sections 5(a), 5(b) or 5(c)) by which the Exercise Price was
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decreased pursuant to Section 5(c) upon the issuance of the Option or
Convertible Securities.
(v) In the event of the termination or expiration of any right to
purchase Shares under any Option granted after the date of this Warrant or of
any right to convert or exchange Convertible Securities issued after the date of
this Warrant, the Exercise Price shall, upon such termination, be readjusted to
the Exercise Price that would have been in effect at the time of such
expiration or termination had such Option or Convertible Securities, to the
extent outstanding immediately prior to such expiration or termination, never
been issued, and the Shares issuable thereunder shall no longer be deemed to be
Stock Outstanding; provided, that if such readjustment is an increase in the
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Exercise Price, such readjustment shall not exceed the amount (as adjusted by
Sections 5(a), 5(b) or 5(c)) by which the Exercise Price was decreased pursuant
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to Section 5(c) upon the issuance of the Option or Convertible Securities. The
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termination or expiration of any right to purchase Shares under any Option
granted prior to the date of this Warrant or of any right to convert or exchange
Convertible Securities issued prior to the date of this Warrant shall not
trigger any adjustment to the Exercise Price, but the shares of Stock issuable
under such Options or Convertible Securities shall no longer be counted in
determining the number of shares of Stock Outstanding on the date of issuance of
this Warrant for purposes of subsequent calculations under this Section 5(c).
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(vi) Notwithstanding anything herein to the contrary, the Exercise
Price shall not be adjusted pursuant to this Section 5(c) by virtue of the
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issuance and/or sale of "Excluded Stock," which shall mean the following: (a)
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Shares, Options or Convertible Securities to be issued and/or sold to employees,
advisors, directors, or officers of, or consultants to, the Company or any of
its subsidiaries pursuant to a stock grant, stock option plan, restricted stock
agreements, stock purchase plan, pension or profit sharing plan or other stock
agreement or arrangement; (b) Shares, Options and/or Convertible Securities to
be issued pursuant to Options and/or Convertible Securities outstanding as of
the date of this Warrant; and (c) Shares and Warrants to be issued in connection
with the Offering. For all purposes of this Section 5(c), all shares of
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Excluded Stock shall be deemed to have been issued for an amount of
consideration per share equal to the initial Exercise Price (subject to
adjustment in the manner set forth in Section 5(a) and 5(b)).
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(d) Whenever there shall be an adjustment as provided in this Section
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5, the Company shall within 15 days thereafter cause written notice thereof to
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be sent by registered mail, postage prepaid, to the Holder, at its address as it
shall appear in the Warrant Register, which notice shall be accompanied by an
officer's certificate setting forth the adjusted number of Warrant Shares
issuable hereunder and the exercise price thereof after such adjustment and
setting forth a brief statement of the facts requiring such
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adjustment and the computation thereof, which officer's certificate shall be
conclusive evidence of the correctness of any such adjustment absent manifest
error.
(e) The Company shall not be required to issue fractions of Shares or
other shares of the Company upon the exercise of this Warrant. If any fraction
of a share would be issuable upon the exercise of this Warrant (or specified
portions thereof), the Company may issue a whole share in lieu of such fraction
or the Company may purchase such fraction for an amount in cash equal to the
same fraction of the Current Market Price of such Shares on the date of exercise
of this Warrant.
(f) The "Current Market Price" per Share on any date shall be deemed
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to be the average of the daily closing prices for the Shares for the five (5)
consecutive trading days immediately preceding the date in question. The
closing price for each day shall be the last reported sales price regular way
or, in case no such reported sale takes place on such day, the average of the
closing bid and asked prices regular way, in either case on the principal
national securities exchange on which the Shares are listed or admitted to
trading or, if the Shares are not listed or admitted to trading on any national
securities exchange, the highest reported bid price for the Shares as furnished
by the National Association of Securities Dealers, Inc. through NASDAQ or a
similar organization if NASDAQ is no longer reporting such information. If on
any such date the Shares are not listed or admitted to trading on any national
securities exchange and are not quoted by NASDAQ or any similar organization,
the Current Market Price per Share shall be the fair value of a Share on such
date, as determined in good faith by the Board of Directors of the Company,
whose determination shall be conclusive absent manifest error.
(g) No adjustment in the Exercise Price shall be required if such
adjustment is less than $0.05; provided, however, that any adjustments which by
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reason of this Section 5(g) are not required to be made shall be carried forward
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and taken into account in any subsequent adjustment. All calculations under
this Section 5 shall be made to the nearest cent or to the nearest thousandth of
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a share, as the case may be.
(h) Upon each adjustment of the Exercise Price as a result of the
calculations made in this Section 5, the Warrants shall thereafter evidence the
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right to purchase, at the adjusted Exercise Price, that number of Shares
(calculated to the nearest hundredth) obtained by dividing (i) the product
obtained by multiplying the number of Shares purchasable upon exercise of the
Warrants prior to adjustment of the number of Shares by the Exercise Price in
effect prior to adjustment of the Exercise Price by (ii) the Exercise Price in
effect after such adjustment of the Exercise Price.
6. Consolidations and Mergers. (a) In case of any consolidation with or
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merger of the Company with or into another corporation (other than a merger or
consolidation in which the Company is the surviving or continuing corporation
and which does not result in any reclassification of the outstanding Shares or
the conversion of such outstanding Shares into shares of other stock or other
securities or property), or in case of any sale, lease or conveyance to another
corporation of the property and assets of any nature of the Company as an
entirety or substantially as an entirety (such actions being hereinafter
collectively referred to as "Reorganization s"), there shall thereafter be
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deliverable upon exercise of this Warrant (in lieu of the number of Shares
theretofore deliverable) the kind
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and amount of shares of stock or other securities, cash or other property which
would otherwise have been deliverable, upon such Reorganization, to a holder of
the number of Shares upon the exercise of this Warrant if this Warrant had been
exercised in full immediately prior to such Reorganization. In case of any
Reorganization, appropriate adjustment, as determined in good faith by the Board
of Directors of the Company, shall be made in the application of the provisions
herein set forth with respect to the rights and interests of the Holder so that
the provisions set forth herein shall thereafter be applicable, as nearly as
possible, in relation to any shares or other property thereafter deliverable
upon exercise of this Warrant. Notwithstanding the foregoing, the Company shall
not effect any such Reorganization unless upon or prior to the consummation
thereof the successor corporation, or, if the Company shall be the surviving
corporation in any such Reorganization and is not the issuer of the shares of
stock or other securities or property to be delivered to holders of Shares
outstanding at the effective time thereof, then such issuer, shall assume by
written instrument the obligation to deliver to the Holder such shares of stock,
securities, cash or other property as the Holder shall be entitled to purchase
in accordance with the foregoing provisions.
(b) In case of any reclassification or change of the Shares issuable
upon exercise of this Warrant (other than a change in par value or from no par
value to a specified par value, or as a result of a subdivision or combination,
but including any change in the Shares into two or more classes or series of
shares), or in case of any consolidation or merger of another corporation into
the Company in which the Company is the continuing corporation and in which
there is a reclassification or change (including a change to the right to
receive cash or other property) of the Shares (other than a change in par value,
or from no par value to a specified par value, or as a result of a subdivision
or combination, but including any change in the Shares into two or more classes
or series of shares), the Holder shall have the right thereafter to receive upon
exercise of this Warrant solely the kind and amount of shares of stock and other
securities, property, cash or any combination thereof receivable upon such
reclassification, change, consolidation or merger by a holder of the number of
Shares for which this Warrant might have been exercised immediately prior to
such reclassification, change, consolidation or merger. Thereafter, appropriate
provision shall be made for adjustments which shall be as nearly equivalent as
practicable to the adjustments in Section 5.
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(c) The above provisions of this Section 6 shall similarly apply to
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successive Reorganizations, reclassifications and changes of Shares and to
successive consolidations, mergers, sales, leases, or conveyances.
7. Notice of Certain Events. In case at any time any of the following
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occur:
(a) The Company shall take a record of the holders of its Shares for
the purpose of entitling them to receive a dividend or distribution payable
otherwise than in cash, or a cash dividend or distribution payable otherwise
than out of current or retained earnings, as indicated by the accounting
treatment of such dividend or distribution on the books of the Company; or
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(b) The Company shall offer to all the holders of its Shares any
additional shares of capital stock of the Company or securities convertible into
or exchangeable for shares of capital stock of the Company, or any option, right
or warrant to subscribe therefor; or
(c) The Company shall take any action to effect any Reorganization,
reclassification or change of outstanding Shares or any consolidation, merger,
sale, lease or conveyance of property, in each case as described in Section 6;
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or
(d) The Company shall take any action to effect any liquidation,
dissolution or winding-up of the Company or a sale of all or substantially all
of its property, assets and business;
then, and in any one or more of such cases, the Company shall give written
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notice thereof, by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant Register, mailed at least
fifteen (15) days prior to (i) the date as of which the holders of record of
Shares to be entitled to receive any such dividend, distribution, rights,
warrants or other securities are to be determined, (ii) the date on which any
such offer to holders of Shares is made, or (iii) the date on which any such
Reorganization, reclassification, change of outstanding Shares, consolidation,
merger, sale, lease, conveyance of property, liquidation, dissolution or
winding-up is expected to become effective and the date as of which it is
expected that holders of record of Shares shall be entitled to exchange their
shares for securities or other property, if any, deliverable upon such
reclassification, change of outstanding shares, consolidation, merger, sale,
lease, conveyance of property, liquidation, dissolution or winding-up.
8. Taxes. The issuance of any Warrant Shares or other securities
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upon the exercise of this Warrant and the delivery of certificates or other
instruments representing such Warrant Shares or other securities shall be made
without charge to the Holder for any tax or other charge in respect of such
issuance. The Company shall not, however, be required to pay any tax which may
be payable in respect of any transfer involved in the issue and delivery of any
certificate in a name other than that of the Holder (except for any tax that is
payable in respect of any such transfer and any related exercise of this Warrant
and that would be payable pursuant to the first sentence of this Section 8 were
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such certificate to be issued in the name of the Holder) and the Company shall
not be required to issue or deliver any such certificate unless and until the
person or persons requesting the issue thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
9. Legend. The certificate or certificates evidencing the Warrant
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Shares shall bear the following legend (until such time as the applicable
Warrant Shares are sold under an effective registration statement or pursuant to
Rule 144 under the Act):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR STATE
SECURITIES LAWS, BUT HAVE BEEN
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ISSUED OR TRANSFERRED PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT. SUCH SHARES MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO (i) A REGISTRATION STATEMENT
UNDER SUCH ACT, OR (ii) AN EXEMPTION FROM REGISTRATION UNDER SUCH
ACT."
10. Replacement of Warrants. Upon receipt of evidence satisfactory to
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the Company of the loss, theft, destruction or mutilation of any Warrant (and
upon surrender of any Warrant if mutilated), and upon reimbursement of the
Company's reasonable incidental expenses, the Company shall execute and deliver
to the Holder thereof a new Warrant of like date, tenor and denomination.
11. No Rights as Stockholder. The Holder of any Warrant shall not have,
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solely on account of such status, any rights of a stockholder of the Company,
either at law or in equity, or to any notice of meetings of stockholders or of
any other proceedings of the Company, except as provided in this Warrant.
12. Notices. All notices, requests, consents and other communications
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hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to the registered Holder of this Warrant, to the address of
such Holder as shown on the Warrant Register; or
(b) If to the Company, to the address set forth on the first page of
this Warrant or to such other address as the Company may designate by notice to
the Holder.
13. Successors. All the covenants, agreements, representations and
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warranties contained in this Warrant shall bind the parties hereto and their
respective heirs, executors, administrators, distributees, successors and
assigns.
14. Headings. The Article and Section headings in this Warrant are
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inserted for purposes of convenience only and shall have no substantive effect.
15. Governing Law. This Warrant shall be construed in accordance with
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the laws of the State of New York applicable to contracts made and performed
within such State, without regard to principles of conflicts of law.
16. Modification of Agreement. This Warrant shall not otherwise be
-------------------------
modified, supplemented or amended in any respect unless such modification,
supplement or amendment is in writing and signed by the Company and the Holder
of this Warrant and Holders of any portion of the Warrant subsequently assigned
or transferred in accordance with the terms of this Warrant.
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17. Consent to Jurisdiction. The Company and the Holder irrevocably
-----------------------
consent to the jurisdiction of the courts of the State of New York and of any
federal court located in such State in connection with any action or proceeding
arising out of or relating to this Warrant, any document or instrument delivered
pursuant to, in connection with or simultaneously with this Warrant, or a breach
of this Warrant or any such document or instrument. In any such action or
proceeding, the Company waives personal service of any summons, complaint or
other process and agrees that service thereof may be made in accordance with
Section 14 hereof.
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IN WITNESS WHEREOF, the undersigned has executed this instrument as of
the date set forth below.
Dated: As of February 25, 2000 CARDIMA, INC.
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
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FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer the Warrant)
FOR VALUE RECEIVED, _____________________________________________________
hereby sells, assigns, and transfers unto ____________________, having an
address at , the attached Warrant to the extent of the right to purchase shares
of Common Stock, par value $0.001 per share, of Cardima, Inc., (the "Company"),
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together with all right, title, and interest therein, and does hereby
irrevocably constitute and appoint as attorney to transfer such Warrant on the
books of the Company, with full power of substitution.
Dated: _____________, _____________
_________________________________________ Print name of holder of Warrant
By:________________________________________ Name:
Title:
NOTICE
The signature on the foregoing Assignment must correspond to the name
as written upon the face of this Warrant in every particular, without alteration
or enlargement or any change whatsoever.
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NOTICE OF EXERCISE
The undersigned hereby exercises its rights to purchase
____________________ Warrant Shares covered by the within Warrant and tenders
payment herewith in the amount of $____________________________ in accordance
with the terms thereof, and requests that certificates for such securities be
issued in the name of, and delivered to:
(Print Name, Address and Social Security
or Tax Identification Number)
and, if such number of Warrant Shares shall not be all the Warrant Shares
covered by the within Warrant, that a new Warrant for the balance of the Warrant
Shares covered by the within Warrant be registered in the name of, and delivered
to, the undersigned at the address stated below.
Dated: _________________________________ Name:_______________________________
(Print)
--------------------------------- (Signature)
(Signature must conform to the
name of the warrant Holder
specified on the face of the
Warrant)
Address:
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CONVERSION NOTICE
The undersigned hereby exercises its Conversion Rights to receive
____________________ Warrant Shares covered by the within Warrant. Based upon a
Conversion Market Price of $___________ per Share, the undersigned hereby
requests that a certificate for such Warrant Shares be issued in the name of,
and delivered to:
(Print Name, Address and Social Security
or Tax Identification Number)
and, if such number of Warrant Shares shall not be all the Warrant Shares
covered by the within Warrant, that a new Warrant for the balance of the Warrant
Shares covered by the within Warrant be registered in the name of, and delivered
to, the undersigned at the address stated below.
Dated: _____________________________ Name:_____________________________________
(Print)
----------------------------
(Signature)
(Signature must conform to the name of
the warrant Holder specified on the
face of the Warrant)
Address:
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