Oculus Innovative Sciences, Inc. WARRANT TO PURCHASE COMMON STOCK
Exhibit
4.5
Warrant
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER THE
ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
Oculus Innovative Sciences, Inc.
WARRANT TO PURCHASE COMMON STOCK
WARRANT TO PURCHASE COMMON STOCK
No. ___
|
<<DATE>> |
Void AFTER <<DATE>>
This Certifies That, subject to the terms of this Warrant, for value received,
(the “Holder”), is entitled to subscribe for and purchase at the Exercise
Price (defined below) from Oculus Innovative Sciences, Inc., a California corporation,
with its principal office at 0000 X. XxXxxxxx Xxxx., Xxxxxxxx, XX 00000 (the “Company”) up to
___ shares of the Common Stock of the Company (the “Common Stock”).
This Warrant is being issued pursuant to that certain Consultant Agreement (Advisory Services),
dated , entered into by and between the Company and the Holder (the “Consultant
Agreement”).
1. Definitions. As used herein, the following terms shall have the
following respective meanings:
(a) “Exercise Period” shall mean the period commencing with , or such other date
as the Board of Directors shall determine that the milestones set forth on Exhibit A to the
Consultant Agreement have been achieved, as set forth in resolutions of the Board of Directors and
ending on , unless sooner terminated as provided below.
(b) “Exercise Price” shall mean $ per share, subject to adjustment pursuant to Section
5 below.
(c) “Exercise Shares” shall mean the shares of the Company’s Common Stock issuable upon
exercise of this Warrant, subject to adjustment pursuant to the terms herein, including but not
limited to adjustment pursuant to Section 5 below.
2. Exercise of Warrant. Subject to Holder’s continuous service under the
Consultant Agreement, the vesting schedule contained in the Consultant Agreement, and the other
limitations contained in the Consultant Agreement and this Warrant, the rights represented by this
Warrant may be exercised in whole or in part at any time during the Exercise Period by
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delivery of the following to the Company at its address set forth above (or at such other
address as it may designate by notice in writing to the Holder):
(a) An executed Notice of Exercise in the form attached hereto;
(b) Payment of the Exercise Price either (i) in cash or by check, or (ii) by cancellation of
indebtedness; and
(c) This Warrant.
Upon the exercise of the rights represented by this Warrant, a certificate or certificates for
the Exercise Shares so purchased, registered in the name of the Holder or persons affiliated with
the Holder, if the Holder so designates, shall be issued and delivered to the Holder within a
reasonable time after the rights represented by this Warrant shall have been so exercised.
The person in whose name any certificate or certificates for Exercise Shares are to be issued
upon exercise of this Warrant shall be deemed to have become the holder of record of such shares on
the date on which this Warrant was surrendered and payment in full of the Exercise Price was made,
irrespective of the date of delivery of such certificate or certificates, except that, if the date
of such surrender and payment is a date when the stock transfer books of the Company are closed,
such person shall be deemed to have become the holder of such shares at the close of business on
the next succeeding date on which the stock transfer books are open.
3. Covenants of the Company.
(a) Covenants as to Exercise Shares. The Company covenants and agrees that all Exercise
Shares that may be issued upon the exercise of the rights represented by this Warrant will, upon
issuance, be validly issued and outstanding, fully paid and nonassessable, and free from all taxes,
liens and charges with respect to the issuance thereof. The Company further covenants and agrees
that the Company will at all times during the Exercise Period, have authorized and reserved, a
sufficient number of shares of its Common Stock to provide for the exercise of the rights
represented by this Warrant. If at any time during the Exercise Period the number of authorized
but unissued shares of Common Stock shall not be sufficient to permit exercise of this Warrant, the
Company will take such corporate action as may, in the opinion of its counsel, be necessary to
increase its authorized but unissued shares of Common Stock to such number of shares as shall be
sufficient for such purposes.
(b) Notices of Record Date. In the event of any taking by the Company of a record of the
holders of any class of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend (other than a cash dividend which is the same as cash dividends
paid in previous quarters) or other distribution, the Company shall mail to the Holder, at least
ten (10) days prior to the date specified herein, a notice specifying the date on which any such
record is to be taken for the purpose of such dividend or distribution.
4. Representations of Holder.
(a) Acquisition of Warrant for Personal Account. The Holder represents and warrants that it
is acquiring the Warrant and the Exercise Shares solely for its account for
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investment and not with a view to or for sale or distribution of said Warrant or Exercise
Shares or any part thereof. The Holder also represents that the entire legal and beneficial
interests of the Warrant and Exercise Shares the Holder is acquiring is being acquired for, and
will be held for, its account only. The Holder, by reason of Xxxxxx’s business or financial
experience, has the capacity to evaluate the merits and risks of purchasing Exercise Shares of the
Company and to make an informed investment decision with respect thereto and to protect Xxxxxx’s
interests in connection with the acquisition of this Warrant and the Exercise Shares. Xxxxxx has
obtained information from the Company to make an informed decision relating to the acquisition of
the Warrant.
(b) Securities Are Not Registered.
(i) The Holder understands that the Warrant and the Exercise Shares have not been registered
under the Act on the basis that no distribution or public offering of the stock of the Company is
to be effected. The Holder realizes that the basis for the exemption may not be present if,
notwithstanding its representations, the Holder has a present intention of acquiring the securities
for a fixed or determinable period in the future, selling (in connection with a distribution or
otherwise), granting any participation in, or otherwise distributing the securities. The Holder
has no such present intention.
(ii) The Holder recognizes that the Warrant and the Exercise Shares must be held indefinitely
unless they are subsequently registered under the Act or an exemption from such registration is
available. The Holder recognizes that the Company has no obligation to register the Warrant or the
Exercise Shares of the Company, or to comply with any exemption from such registration.
(iii) The Holder is aware that neither the Warrant nor the Exercise Shares may be sold
pursuant to Rule 144 adopted under the Act unless certain conditions are met, including, among
other things, the existence of a public market for the shares, the availability of certain current
public information about the Company, the resale following the required holding period under Rule
144 and the number of shares being sold during any three month period not exceeding specified
limitations. Xxxxxx is aware that the conditions for resale set forth in Rule 144 have not been
satisfied and that the Company presently has no plans to satisfy these conditions in the
foreseeable future.
(c) Disposition of Warrant and Exercise Shares.
(i) The Holder further agrees not to make any disposition of all or any part of the Warrant or
Exercise Shares in any event unless and until:
(A) The Company shall have received a letter secured by the Holder from the Securities and
Exchange Commission stating that no action will be recommended to the Commission with respect to
the proposed disposition;
(B) There is then in effect a registration statement under the Act covering such proposed
disposition and such disposition is made in accordance with said registration statement and
applicable securities laws; or
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(C) The Holder shall have notified the Company of the proposed disposition and shall have
furnished the Company with a detailed statement of the circumstances surrounding the proposed
disposition, and if reasonably requested by the Company, the Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, for the Holder to the
effect that such disposition will not require registration of such Warrant or Exercise Shares under
the Act or any applicable state securities laws.
(D) The Warrants may not be exercised if the issuance of the Exercise Shares upon such
exercise would constitute a violation of any applicable federal or state securities laws or
regulations or would not be exempt from federal securities law registration and qualification under
applicable state law. As a condition to the exercise of the Warrants, the Company may require
Holder to make such representations and warranties to the Company as may be required by applicable
law or regulation.
(ii) The Holder understands and agrees that all certificates evidencing the Exercise Shares
may bear the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED.
5. Adjustment of Exercise Price. In the event of changes in the outstanding
Common Stock of the Company by reason of stock dividends, split-ups, recapitalizations,
reclassifications, combinations or exchanges of shares, separations, reorganizations, liquidations,
or the like, the number and class of shares available under the Warrant in the aggregate and the
Exercise Price shall be correspondingly adjusted to give the Holder of the Warrant, on exercise for
the same aggregate Exercise Price, the total number, class, and kind of shares as the Holder would
have owned had the Warrant been exercised prior to the event and had the Holder continued to hold
such shares until after the event requiring adjustment; provided, however, that such adjustment
shall not be made with respect to, and this Warrant shall terminate if not exercised prior to, the
events set forth in Section 7 below. The form of this Warrant need not be changed because of any
adjustment in the number of Exercise Shares subject to this Warrant.
6. Fractional Shares. No fractional shares shall be issued upon the
exercise of this Warrant as a consequence of any adjustment pursuant hereto. All Exercise Shares
(including fractions) issuable upon exercise of this Warrant may be aggregated for purposes of
determining whether the exercise would result in the issuance of any fractional share. If, after
aggregation, the exercise would result in the issuance of a fractional share, the Company shall, in
lieu of issuance of any fractional share, pay the Holder otherwise entitled to such fraction a sum
in cash equal to the product resulting from multiplying the then current fair market value of an
Exercise Share by such fraction.
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7. Early Termination. In the event of, at any time during the Exercise
Period, any capital reorganization, or any reclassification of the capital stock of the Company
(other than a change in par value or from par value to no par value or no par value to par value or
as a result of a stock dividend or subdivision, split-up or combination of shares), or the
consolidation or merger of the Company with or into another corporation (other than a merger solely
to effect a reincorporation of the Company into another state), or the sale or other disposition of
all or substantially all the properties and assets of the Company in its entirety to any other
person, the Company shall provide to the Holder twenty (20) days advance written notice of such
reorganization, reclassification, consolidation, merger or sale or other disposition of the
Company’s assets, and this Warrant shall terminate unless exercised prior to the closing of such
reorganization, reclassification, consolidation, merger or sale or other disposition of the
Company’s assets.
8. Market Stand-Off Agreement. Holder shall not sell, dispose of, transfer,
make any short sale of, grant any option for the purchase of, or enter into any hedging or similar
transaction with the same economic effect as a sale, any Common Stock (or other securities) of the
Company held by Xxxxxx, for a period of time specified by the managing underwriter(s) (not to
exceed one hundred eighty (180) days following the effective date of a registration statement of
the Company filed under the Act. Xxxxxx agrees to execute and deliver such other agreements as may
be reasonably requested by the Company and/or the managing underwriter(s) which are consistent with
the foregoing or which are necessary to give further effect thereto. In order to enforce the
foregoing covenant, the Company may impose stop-transfer instructions with respect to such Common
Stock (or other securities) until the end of such period. The underwriters of the Company’s stock
are intended third party beneficiaries of this Section 8 and shall have the right, power and
authority to enforce the provisions hereof as though they were a party hereto.
9. No Stockholder Rights. This Warrant in and of itself shall not entitle
the Holder to any voting rights or other rights as a stockholder of the Company.
10. No Transfer. This Warrant and all rights hereunder may not be
transferred by the Holder without the prior written consent of the Company, and any purported
transfer, assignment, pledge or hypothecation in contravention of this Section 10 shall be of no
force or effect.
11. Lost, Stolen, Mutilated or Destroyed Warrant. If this Warrant is lost,
stolen, mutilated or destroyed, the Company may, on such terms as to indemnity or otherwise as it
may reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated or destroyed. Any such new Warrant shall constitute an original contractual obligation
of the Company, whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shall be
at any time enforceable by anyone.
12. Notices, etc. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the party to be
notified, (b) when sent by confirmed telex or facsimile if sent during normal business hours of the
recipient, if not, then on the next business day, (c) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after
deposit with a nationally
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recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to the Company at the address
listed on the signature page and to Holder at 0000 X. XxXxxxxx Xxxx., Xxxxxxxx, Xxxxxxxxxx 00000 or
at such other address as the Company or Holder may designate by ten (10) days advance written
notice to the other party hereto.
13. Acceptance. Receipt of this Warrant by the Holder shall constitute
acceptance of and agreement to all of the terms and conditions contained herein.
14. Governing Law. This Warrant and all rights, obligations and liabilities
hereunder shall be governed by the laws of the State of California.
In Witness Whereof, the Company has caused this Warrant to be executed by its duly
authorized officer as of .
| Oculus Innovative Sciences, Inc. | ||||||
| By: | ||||||
HOLDER: |
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NOTICE OF EXERCISE
(1) The undersigned hereby elects to purchase shares of Common Stock of Oculus
Innovative Sciences, Inc. (the “Company”) pursuant to the terms of the attached Warrant, and
tenders herewith payment of the exercise price in full, together with all applicable transfer
taxes, if any.
(2) Please issue a certificate or certificates representing said shares of Common Stock in the
name of the undersigned or in such other name as is specified below:
(Name)
(Address)
(3) The undersigned represents that (i) he is an accredited investor, as defined in Section
501(a) of Regulation D, promulgated under the Securities Act of 1933, as amended (the “Securities
Act”); (ii) the aforesaid shares of Common Stock are being acquired for the account of the
undersigned for investment and not with a view to, or for resale in connection with, the
distribution thereof and that the undersigned has no present intention of distributing or reselling
such shares; (iii) the undersigned is aware of the Company’s business affairs and financial
condition and has acquired sufficient information about the Company to reach an informed and
knowledgeable decision regarding its investment in the Company; (iv) the undersigned is experienced
in making investments of this type and has such knowledge and background in financial and business
matters that the undersigned is capable of evaluating the merits and risks of this investment and
protecting the undersigned’s own interests; (v) the undersigned understands that the shares of
Common Stock issuable upon exercise of this Warrant have not been registered under the Securities
Act, by reason of a specific exemption from the registration provisions of the Securities Act,
which exemption depends upon, among other things, the bona fide nature of the investment intent as
expressed herein, and, because such securities have not been registered under the Securities Act,
they must be held indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available; (vi) the undersigned is aware that the aforesaid
shares of Common Stock may not be sold pursuant to Rule 144 adopted under the Securities Act unless
certain conditions are met and until the undersigned has held the shares for the number of years
prescribed by Rule 144, that among the conditions for use of the Rule is the availability of
current information to the public about the Company and the Company has not made such information
available and has no present plans to do so; and (vii) the undersigned agrees not to make any
disposition of all or any part of the aforesaid shares of Common Stock unless and until there is
then in effect a registration statement
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under the Securities Act covering such proposed disposition and such disposition is made in
accordance with said registration statement, or the undersigned has provided the Company with an
opinion of counsel satisfactory to the Company, stating that such registration is not required.
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