OCULUS INNOVATIVE SCIENCES, INC. Form of Series A Warrants for the Purchase of Shares of Common Stock, Par Value $0.0001 per Share
Exhibit 4.16
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS
AND MAY NOT BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN OPINION OF COMPANY COUNSEL THAT THIS WARRANT OR
SUCH SECURITIES, AS APPLICABLE, MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED
IN THE MANNER CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
APPLICABLE STATE SECURITIES LAWS.
Form of Series A Warrants for the Purchase
of
Shares of Common Stock, Par Value $0.0001 per Share
of
Shares of Common Stock, Par Value $0.0001 per Share
No. ___331
Issue Date: March 4, 2009
Issue Date: March 4, 2009
THIS CERTIFIES that, for consideration, the receipt and sufficiency of which are hereby
acknowledged, and other value received, Xxxx Xxxx (the “Holder”) is entitled to subscribe for, and
purchase from, OCULUS INNOVATIVE SCIENCES, INC., a Delaware corporation (the “Company”), upon the
terms and conditions set forth herein, at any time or from time to time six months after the date
this warrant is issued (the “Initial Exercise Date”) until five years after the Issue Date (the
“Exercise Period”), up to an aggregate of 50,000 shares of common stock, par value $0.0001 per
share (the “Common Stock”), of the Company. This Warrant is initially exercisable at a price of
$1.87 per share, subject to adjustment as described in this Warrant. The term “Exercise Price”
shall mean, depending on the context, the initial exercise price (as set forth above) or the
adjusted exercise price per share. The Company may, in its sole discretion, reduce the then current
Exercise Price to any amount or extend the Exercise Period, at any time. Such modifications to the
Exercise Price or Exercise Period may be temporary or permanent.
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. Each share of Common Stock issuable upon the exercise hereof shall be hereinafter referred
to as a “Warrant Share.”
1. (a) Subject to the terms of this Warrant, this Warrant may be exercised at any
time in whole and from time to time in part, at the option of the Holder, on or after the Initial
Exercise Date and on or prior to the end of the Exercise Period. This Warrant
shall initially be exercisable in whole or in part for that number of fully paid and nonassessable
shares of Common Stock as indicated on the first page of this Warrant, for an exercise price per
share equal to the Exercise Price, by delivery to the Company at its office at 0000 Xxxxx XxXxxxxx
Xxxx., Xxxxxxxx, Xxxxxxxxxx 00000, or at such other place as is designated in writing by the
Company, of:
(i) a completed Election to Purchase, in the form set forth in Exhibit A,
executed by the Holder exercising all or part of the purchase rights represented by this Warrant;
(ii) this Warrant; and
(iii) subject to Section 1(c) below, payment of an amount equal to the product of the
Exercise Price multiplied by the number of shares of Common Stock being purchased upon such
exercise in the form of, at the Holder’s option, (A) a certified or bank cashier’s check payable to
the Company, or (B) a wire transfer of funds to an account designated by the Company.
(b) As used herein:
(i) “Fair Market Value” of a security shall mean, on any given day, the average of the
closing prices of such security’s sales on all securities exchanges on which such security
may at the time be listed on such day, or, if there has been no sales on any such exchange
on such day, the average of the highest bid and lowest asked prices on all such exchanges
at the end of such day, or, if on such day such security is not so listed, the average of
the representative bid and asked prices quoted on the over-the-counter bulletin board (the
“OTCBB”) as of 4:00 P.M., New York time, or, if on such day such security is not quoted on
the OTCBB, the average of the highest bid and lowest asked prices on such day in the
domestic over-the-counter market as reported by the Pink Sheet, LLC, or any similar
successor organization. If at any time such security is not listed on any securities
exchange or quoted on the OTCBB or the over-the-counter market, the “Fair Market Value”
shall be as determined by the Board of Directors of the Company in good faith, absent
manifest error.
(c) Cashless Exercise. If at any time six months after the date of the
issuance of this Warrant there is no effective registration statement registering, or no current
prospectus available for, the resale of the Warrant Shares by the Holder, then this Warrant may
also be exercised only at such time by means of a “cashless exercise” in which the Holder shall be
entitled to receive, without the payment by the Holder of any additional consideration, a
certificate for the number of Warrant Shares equal to the number as is computed using the following
formula:
X =
|
Y (A-B)
|
where
| X = | the number of Warrant Shares to be issued to the Holder pursuant to this Warrant. | |
| Y = | the number of Warrant Shares covered by this Warrant with respect to which the cashless exercise election is made pursuant to this Section 1(c). | |
| A = | the Fair Market Value (as defined above) of one Warrant Share. | |
| B = | the Exercise Price in effect at the time the cashless exercise election is made pursuant to this Section 1(c). |
(d) Upon the exercise of this Warrant, the Company shall issue and cause promptly to be
delivered upon such exercise to, or upon the written order of, the Holder a certificate or
certificates for the number of full Warrant Shares to which such Holder shall be entitled, together
with cash in lieu of any fraction of a Warrant Share otherwise issuable upon such exercise.
(e) If this Warrant is exercised in respect of less than all of the Warrant Shares
evidenced by this Warrant at any time prior to the end of the Exercise Period, a new Warrant
evidencing the remaining Warrant Shares shall be issued to the Holder, or its nominee(s), without
charge therefor.
2. The Exercise Price for the Warrants in effect from time to time shall be subject to
adjustment as follows:
(a) If the Company, at any time while this Warrant is outstanding: (i) subdivides
outstanding shares of Common Stock into a larger number of shares, (ii) combines (including by way
of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or
(iii) issues by reclassification of shares of the Common Stock any shares of capital stock of the
Company, then in each case the Exercise Price shall be multiplied by a fraction of which the
numerator shall be the number of shares of Common Stock (excluding treasury shares, if any)
outstanding immediately before such event and of which the denominator shall be the number of
shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to
this Section 2(a) shall become effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision, combination or
re-classification.
(b) If the Company, at any time while this Warrant is outstanding, shall distribute to
all or substantially all holders of Common Stock (and not to the Holder) evidence of its
indebtedness or assets (including cash and cash dividends) or rights or warrants to subscribe for
or purchase any security other than the Common Stock, then in each such case the Exercise Price
shall be adjusted by multiplying the Exercise Price in effect immediately prior to the record date
fixed for determination of stockholders entitled to receive such distribution by a fraction of
which (i) the denominator shall be the Fair
Market Value per share of Common Stock determined as of the record date mentioned above and
(ii) the numerator shall be such Fair Market Value per share of Common Stock on such record date
less the then per share fair market value at such record date of the portion of such evidence of
indebtedness or assets (including cash and cash dividends) or rights or warrants to subscribe for
or purchase any security other than the Common Stock so distributed applicable to one outstanding
share of the Common Stock, which fair market value shall be reduced by the fair market value of
consideration, if any, paid to the Company by holders of Common Stock in exchange for such evidence
of indebtedness or assets or rights or warrants so distributed, in each case as such Fair Market
Value is determined by the Board of Directors of the Company in good faith. In either case, the
adjustments shall be described in a statement provided to the Holder of the portion of evidences of
indebtedness or assets (including cash and cash dividends) or rights or warrants to subscribe for
or purchase any security other than the Common Stock so distributed or such subscription rights
applicable to one share of Common Stock. Such adjustment shall be made whenever any such
distribution is made and shall become effective immediately after the record date mentioned above.
(c) All calculations under this Section 2 shall be made to the nearest cent.
(d) The Company shall not be required upon the exercise of this Warrant to issue any
fractional shares, but may pay the value thereof to the Holder in cash on the basis of the Fair
Market Value per Warrant Share.
(e) No adjustment in the Exercise Price shall be required unless such adjustment would
require an increase or decrease of at least one percent (1%) in such price.
3. Unless registered, the Warrant Shares issued on exercise of the Warrants shall be
subject to a stop transfer order and the certificate or certificates representing the Warrant
Shares shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION
STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE
STATE SECURITIES LAWS, OR (2) THE COMPANY RECEIVES AN OPINION OF COUNSEL WHICH COUNSEL AND
OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT THE SECURITIES MAY BE OFFERED,
SOLD, PLEDGED, ASSIGNED, OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE STATE SECURITIES
LAWS.
4. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock
certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity
or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the
posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if
mutilated, the Company will make
and deliver a new Warrant or stock certificate, without charge, of like date, tenor and
denomination, in lieu of such Warrant or stock certificate.
5. The Company shall not be obligated to issue any shares of Common Stock upon exercise
of this Warrant if the issuance of such shares of Common Stock would cause a breach or violation of
the Company’s obligations under any applicable rules or regulations of any market on which the
Company’s securities trade.
6. The Company shall not effect any exercise of this Warrant, and a Holder shall not
have the right to exercise any portion of this Warrant, to the extent that after giving effect to
such issuance after exercise, such Holder (together with such Holder’s affiliates, and any other
person or entity acting as a group together with such Holder or any of such Holder’s affiliates),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For
purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by such
Holder and its affiliates shall include the number of shares of Common Stock issuable upon exercise
of this Warrant with respect to which such determination is being made, but shall exclude the
number of shares of Common Stock which would be issuable upon (A) exercise of the remaining,
nonexercised portion of this Warrant beneficially owned by such Holder or any of its affiliates and
(B) exercise or conversion of the unexercised or nonconverted portion of any other securities of
the Company subject to a limitation on conversion or exercise analogous to the limitation contained
herein beneficially owned by such Holder or any of its Affiliates. Except as set forth in the
preceding sentence, beneficial ownership shall be calculated in accordance with Section 13(d) of
the The Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder. The
“Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock
outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon
exercise of this Warrant. The Beneficial Ownership Limitation provisions of this section may be
waived by such Holder, at the election of such Holder, upon not less than 61 days’ prior notice to
the Company to change the Beneficial Ownership Limitation to 9.99% of the number of shares of the
Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock
upon exercise of this Warrant, and the provisions of this section shall continue to apply. Upon
such a change by a Holder of the Beneficial Ownership Limitation from such 4.99% limitation to such
9.99% limitation, the Beneficial Ownership Limitation may not be further waived by such Holder. The
provisions of this paragraph shall be construed and implemented in a manner otherwise than in
strict conformity with the terms of this section to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein
contained or to make changes or supplements necessary or desirable to properly give effect to such
limitation. The limitations contained in this paragraph shall apply to a successor holder of this
Warrant.
7. (a) The Holder shall not have, solely on account of its status as a holder of a
Warrant, 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.
(b) No provision hereof, in the absence of affirmative action by the Holder to
receive Warrant Shares, and no enumeration herein of the rights or privileges of the Holder hereof,
shall give rise to any liability of the Holder for the purchase price of any Common Stock or as a
stockholder of Company, whether such liability is asserted by Company or by creditors of Company.
8. All notices that are required or permitted hereunder shall be in writing and shall be
sufficient if personally delivered, sent by facsimile, or sent by registered or certified mail or
Federal Express or other nationally recognized overnight delivery service. Any notices shall be
deemed given upon the earlier of the date when received at, the day when delivered via facsimile or
the third day after the date when sent by registered or certified mail or the day after the date
when sent by Federal Express to, the address set forth below, unless such address is changed by
notice to the other party hereto:
if to the Company:
Oculus Innovative Sciences, Inc.
0000 Xxxxx XxXxxxxx Xxxx.
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxx, Vice President Corporate Development and General Counsel
Fax: (000) 000-0000
0000 Xxxxx XxXxxxxx Xxxx.
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxx, Vice President Corporate Development and General Counsel
Fax: (000) 000-0000
if to the Holder: As set forth in the Warrant Register of the Company.
The Company or the Holder by notice to the other party may designate additional or different
addresses as shall be furnished in writing by such party.
9. The provisions of this Warrant may not be amended, modified or changed except by an
instrument in writing signed by each of the Company and the Holder.
10. All the covenants and provisions of this Warrant by or for the benefit of the
Company or the Holder shall be binding upon and shall inure to the benefit of their respective
permitted successors and assigns hereunder.
11. The validity, interpretation and performance of this Warrant shall be governed by
the laws of the State of California, as applied to contracts made and performed within such State,
without regard to principles of conflicts of law.
12. The provisions hereof have been and are made solely for the benefit of the Company
and the Holder, and their respective successors and assigns, and no other person shall acquire or
have any right hereunder or by virtue hereof.
13. The headings in this Warrant are for convenience only and shall not limit or
otherwise affect the meaning hereof.
14. If any term, provision, covenant or restriction of this Warrant is held by a court
of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties shall use their
best efforts to find and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of such which may be
hereafter declared invalid, illegal, void or unenforceable.
15. This Warrant is intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and therein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to herein and therein.
This Warrant supersedes all prior agreements and understandings between the parties with respect to
such subject matter.
16. The Company agrees to take such further action and to deliver or cause to be
delivered to each other after the date hereof such additional agreements or instruments as any of
them may reasonably request for the purpose of carrying out this Warrant and the agreements and
transactions contemplated hereby and thereby.
17. Each party hereto acknowledges and agrees that irreparable harm, for which there may
be no adequate remedy at law and for which the ascertainment of damages would be difficult, would
occur in the event any of the provisions of this Warrant were not performed in accordance with its
specific terms or were otherwise breached. Each party hereto accordingly agrees that each other
party hereto shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Warrant, or any agreement contemplated hereunder, and to enforce specifically
the terms and provisions hereof or thereof in any court of the United States or any state thereof
having jurisdiction, in each instance without being required to post bond or other security and in
addition to, and without having to prove the inadequacy of, other remedies at law.
[signature page follows]
| Dated as of: March 4, 2009 OCULUS INNOVATIVE SCIENCES, INC. |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | President, Chief Executive Officer and Chairman of the Board | |||
EXHIBIT A
ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise Warrants represented by this
Warrant and to purchase the shares of Common Stock or other securities issuable upon the exercise
of said Warrants, and requests that Certificates for such shares be issued and delivered as
follows:
PORTION OF WARRANT BEING EXERCISED: (check applicable box or fill in number of Warrant Shares):
| Entire Warrant o | ||||
| Warrant Shares | ||||
ISSUE TO: |
||||
DELIVER TO: |
||||
In payment of the purchase price with respect to this Warrant exercised, the undersigned
hereby either (A) tenders payment of $ by (i) certified or bank cashiers check payable
to the order of the Company o; or (ii) a wire transfer of such funds to an account designated by the
Company o (check applicable box) or (B) hereby provides notice to the Company that the undersigned
is exercising this Warrant pursuant to the Cashless Exercise set forth in Section 1(c) of the
Warrant. If the number of Warrant Shares hereby exercised is fewer than all the Warrant Shares
represented by this Warrant, the undersigned requests that a new Warrant representing the number of
full Warrant Shares not exercised to be issued and delivered as set forth below:
Name of Holder or Assignee: |
||||
Address: |
||||
Signature:
|
DATED: , 20 | |||
| (Signature must conform in all respects to name of holder as specified on the fact of this Warrant) | ||||
Signature Guaranteed:
