THIS WARRANT, AND THE SECURITIES ISSUABLE UPON THE EXERCISE OF THIS WARRANT, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL (WHICH MAY BE COMPANY COUNSEL) REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT, OR ANY APPLICABLE STATE SECURITIES LAWS.
To Purchase Shares of Preferred Stock of
Dated as of December 22, 2015 (the Effective Date)
WHEREAS, Avedro, Inc., a Delaware corporation, has entered into a Loan and Security Agreement dated as of September 11, 2014 (the Loan Agreement) with Hercules Technology Growth Capital, Inc., a Maryland corporation, in its capacity as administrative agent, Hercules Technology III, L.P., a Delaware limited partnership (the Warrantholder) and the other lender parties thereto;
WHEREAS, in connection with the Loan Agreement, the Company and the Warrantholder entered into a Warrant Agreement dated as of September 11, 2014 (the Original Warrant Agreement) pursuant to which the Company granted to Warrantholder the right to purchase shares of the Companys Series D Stock or Next Preferred Round Series of Preferred Stock (each as defined in the Original Warrant Agreement);
WHEREAS, on November 13, 2015, the Company (i) underwent a recapitalization pursuant to which all of the outstanding shares of the Companys Preferred Stock were converted to Common Stock (the Recapitalization ) (ii) adopted a Seventh Amended and Restated Certificate of Incorporation altering the authorized stock of the Company such that the Company is authorized to issue Common Stock and Series AA Preferred Stock; and (iii) issued and sold to investors shares of the Companys Series AA Preferred Stock (the Series AA Financing);
WHEREAS, in connection with the Recapitalization and Series AA Financing, the Company (as defined below) and the Warrantholder desire to terminate and cancel the Original Warrant Agreement and the Company desires to grant to Warrantholder, in consideration for, among other things, the financial accommodations provided for in the Loan Agreement and the termination of the Original Warrant Agreement, the right to purchase shares of Preferred Stock (as defined below) pursuant to this Warrant Agreement (the Agreement);
NOW, THEREFORE, in consideration of the Warrantholder providing the financial accommodations contemplated in the Loan Agreement, cancelling the Original Warrant Agreement and entering into the Warrant Agreement, and in consideration of the mutual covenants and agreements contained herein, the Company and Warrantholder agree as follows:
SECTION 1. GRANT OF THE RIGHT TO PURCHASE PREFERRED STOCK.
For value received, the Company hereby grants to the Warrantholder, and the Warrantholder is entitled, upon the terms and subject to the conditions hereinafter set forth, to subscribe for and purchase, from the Company, an aggregate number of fully paid and non-assessable shares of the Preferred Stock equal to the quotient derived by dividing (a) the Warrant Coverage (as defined below) by (b) the Exercise Price (as defined below). The Exercise Price of such shares is subject to adjustment as provided in Section 8. As used herein, the following terms shall have the following meanings:
Act means the Securities Act of 1933, as amended.
Company means Avedro, Inc., a Delaware corporation, and any successor or surviving entity that assumes the obligations of the Company under this Agreement pursuant to Section 8(a).