DAWSON JAMES SECURITIES, INC. Boca Raton, Florida 33432
Exhibit 10.57
XXXXXX XXXXX SECURITIES, INC.
000 Xxxxx Xxxxxxx Xxxxxxx, Suite No. 600
Boca Raton, Florida 33432
July 10, 2009
Xx. Xxxxxx X. Xxxxxx
Chief Financial Officer
Oculus Innovative Sciences, Inc.
0000 Xxxxx XxXxxxxx Xxxx.
Petaluma, CA 94954
Chief Financial Officer
Oculus Innovative Sciences, Inc.
0000 Xxxxx XxXxxxxx Xxxx.
Petaluma, CA 94954
Re: Second Amendment and Clarification of Engagement Letter
Dear Xx. Xxxxxx,
This letter amends and clarifies the letter agreement between Oculus Innovative Sciences, Inc.
(“Oculus”) and Xxxxxx Xxxxx Securities, Inc. (“DJSI”) dated April 10, 2009 (the “Engagement
Letter”) as amended July 2, 2009 (the “First Amendment”) as follows:
1. The sections entitled “Transaction Fee” and “Transaction Fee Warrants” in Section 8 of the
Engagement Letter are hereby amended and restated in their entirety to read as follows:
Transaction Fee. Upon closing of the Registered Placement, the Company will pay DJSI a
transaction fee in cash (the “Fee”) in an amount equal to 10.0% of the gross proceeds received from
sale of its Securities. XXXX agrees that the Fee is contingent on the closing of the Registered
Placement, and that the Company will not be obligated to pay the Fee unless the Registered
Placement is completed.
Transaction Fee Warrant. Upon closing of the Registered Placement, the Company will issue
DJSI a 5-year warrant to purchase 10.0% of the Common Stock sold in the Registered Placement (the
“DJSI Warrant”), provided, however, that the parties agree that the DJSI Warrant shall be subject
to the following terms and conditions:
a. | the exercise price shall be 125% of the price of the Units issued to the investors in the Registered Placement; | ||
b. | the DJSI Warrant shall not be exercisable or convertible more than five years from the effective date of the Registered Placement; | ||
c. | except as provided in this letter agreement, the DJSI Warrant shall be identical to the warrants issued in the Registered Placement; | ||
d. | the DJSI Warrant shall not have any demand or piggyback registration rights; |
e. | the DJSI Warrant shall not have anti-dilution terms that allow DJSI and related persons to receive more shares or to exercise at a lower price than originally agreed upon at the time of the Registered Placement when the public shareholders have not been proportionally affected by a stock split, stock dividend, or other similar event; | ||
f. | the DJSI Warrant shall not have anti-dilution terms that allow DJSI and related persons to receive or accrue cash dividends prior to the exercise or conversion of the DJSI Warrant; and | ||
g. | for a period of six months after the issuance date of the DJSI Warrant (which shall not be earlier than the closing date of the Registered Placement), neither the DJSI Warrant nor any warrant shares issued upon exercise of the DJSI Warrant shall be (A) sold, transferred, assigned, pledged, or hypothecated, or (B) the subject of any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of 180 days immediately following the date of effectiveness or commencement of sales of the Registered Placement, except the transfer of any security as permitted by the FINRA rules. |
2. We agree that Section 8 of the Engagement Letter shall mean that if the Registered
Placement (as defined in the Engagement Letter) is not completed, then DJSI’s only compensation for
services under the Engagement Letter shall be reimbursement of out of pocket expense actually
incurred by XXXX.
Except as set forth above, the Engagement Letter and First Amendment shall remain in full
force and effect. If you agree with the above please sign below and return an executed copy of
this letter to my attention.
Very truly yours, XXXXXX XXXXX SECURITIES, INC. |
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/s/ Xxxxxx X. Xxxxxxx | ||||
Xxxxxx X. Xxxxxxx | ||||
Senior Managing Director | ||||
AGREED AND ACCEPTED: OCULUS INNOVATIVE SCIENCES, INC. |
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/s/ Xxxxxx X. Xxxxxx | ||||
Xxxxxx X. Xxxxxx | ||||
Chief Financial Officer | ||||