COMMON STOCK PURCHASE WARRANT To Purchase __________ Shares of Common Stock of OCULUS INNOVATIVE SCIENCES, INC.
Exhibit 4.12
NEITHER THIS WARRANT NOR THE UNDERLYING SHARES OF COMMON STOCK HAVE BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS.
UNDER NASD RULE 2710(g) AND SUBJECT TO LIMITED EXCEPTIONS, THIS WARRANT AND THE UNDERLYING SHARES
OF COMMON STOCK SHALL NOT BE SOLD DURING THE PUBLIC OFFERING, AS HEREIN DEFINED, OR SOLD,
TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED, OR BE THE SUBJECT OF ANY HEDGING, SHORT SALE,
DERIVATIVE, PUT, OR CALL TRANSACTION THAT WOULD RESULT IN THE EFFECTIVE ECONOMIC DISPOSITION OF
THIS WARRANT OR THE SECURITIES UNDERLYING THIS WARRANT BY ANY PERSON FOR A PERIOD OF 180 DAYS
IMMEDIATELY FOLLOWING THE DATE OF EFFECTIVENESS OR COMMENCEMENT OF SALES OF THE PUBLIC OFFERING.
COMMON STOCK PURCHASE WARRANT
To Purchase __________ Shares of Common Stock of
This COMMON STOCK PURCHASE WARRANT CERTIFIES that, for value received,
___(the “Holder”), is entitled, upon the terms and subject to the
limitations on exercise and the conditions hereinafter set forth, at any time on or after ___
___, 200___(the “Initial Exercise Date”) and on or prior to the close of business on ___
___, 200___(the “Termination Date”) but not thereafter, to subscribe for and purchase from
Oculus Innovative Sciences, Inc., a corporation incorporated in the State of Delaware (the
“Company”), up to ___shares (the “Warrant Shares”) of Common Stock, par value
$0.0001 per share, of the Company (the “Common Stock”). The purchase price of one share of
Common Stock (the “Exercise Price”) under this Warrant shall be $___, subject to
adjustment hereunder.
1. Title to Warrant. Prior to the Termination Date and subject to compliance with
applicable securities laws and the transfer restrictions imposed by NASD Rule 2710(g) as set forth
in the legend hereto, this Warrant and all rights hereunder are transferable, in whole or in part,
at the office or agency of the Company by the Holder in person or by duly authorized attorney, upon
surrender of this Warrant together with the Assignment Form annexed hereto properly endorsed.
2. Authorization of Shares. The Company covenants that all Warrant Shares which may
be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant, be duly authorized, validly issued, fully paid
and
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nonassessable and free from all taxes, liens and charges in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with such issue).
3. Exercise of Warrant.
(a) Except as provided in Section 4 herein, exercise of the purchase rights represented
by this Warrant may be made, in whole or in part, at any time or times on or after the
Initial Exercise Date and on or before the Termination Date by delivery of this Warrant to
the Company of the duly completed and executed Notice of Exercise Form annexed hereto (or
such other office or agency of the Company as it may designate by notice in writing to the
registered Holder at the address of such Holder appearing on the books of the Company) and
upon payment of the Exercise Price of the shares thereby purchased by wire transfer or
cashier’s check drawn on a United States bank or by means of a “cashless exercise” pursuant
to Section 3(c), the Holder shall be entitled to receive a certificate for the number of
Warrant Shares so purchased. The Company shall use its best efforts to cause the transfer
agent to deliver to the Holder the Warrant Shares as soon as practicable after the date on
which this Warrant shall have been exercised as aforesaid, and in any event (i) within three
(3) business days thereafter if the Warrant Shares purchased hereunder are to be delivered
by DWAC (as defined below) or (ii) within five (5) business days thereafter if the Warrant
Shares purchased hereunder are to be delivered in certificated form. If this Warrant is
exercised at a time when any registration statement registering the sale of the Warrant
Shares to the Holder upon exercise of this Warrant is then effective and available for use
or if the Warrant is exercised by means of a “cashless exercise” pursuant to Section 3(c)
and the Warrant Shares are eligible for sale pursuant to Rule 144(k) under the Securities
Act of 1933, as amended (the “Securities Act”) (such condition each a
“Condition”), the Company shall deliver the Warrant Shares to the Holder, if
eligible, via the Depository Trust Company’s (“DTC”) Deposit Withdrawal Agent
Commission (“DWAC”) system via the DTC instructions provided to the Company in the
Notice of Exercise. If either Condition is met at the time of exercise, the Warrant Shares
shall be, when issued, unlegended and free of any resale restrictions. If no Conditions are
met at the time of such exercise, the certificates representing the Warrant Shares shall be
issued in paper form and contain a standard Securities Act legend restricting resale without
registration or an exemption. This Warrant shall be deemed to have been exercised and such
certificate or certificates shall be deemed to have been issued, and the Holder or any other
person so designated to be named therein shall be deemed to have become a holder of record
of such shares for all purposes, as of the date the Warrant has been exercised as provided
above and payment of all taxes required to be paid by the Holder, if any, pursuant to
Section 5 prior to the issuance of such shares, have been paid. If the Company fails to
deliver to the Holder a certificate or certificates representing the Warrant Shares pursuant
to this Section 3(a) by the close of business on the fifth (5th) business day
after the date of exercise (or the third (3rd) business day if delivery is via
DWAC), then the Holder will have the right to rescind such exercise. In addition to any
other rights available to the Holder, if the Company fails to deliver to the Holder a
certificate or certificates representing the Warrant Shares pursuant to an exercise by the
close of business on the fifth (5th) business day after the date of exercise (or
the third (3rd) business day if delivery via DWAC referenced above), and if after
such third (3rd) or fifth (5th) business day, as applicable, the Holder is
required by its broker to purchase (in an open market transaction or otherwise) shares of
Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which
the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company
shall (1) pay in cash to the Holder the amount by
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which (x) the Holder’s total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying
(A) the number of Warrant Shares that the Company was required to deliver to the Holder in
connection with the exercise at issue times (B) the price at which the sell order giving
rise to such purchase obligation was executed, and (2) at the option of the Holder, either
reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such
exercise was not honored or deliver to the Holder the number of shares of Common Stock that
would have been issued had the Company timely complied with its exercise and delivery
obligations hereunder. For example, if the Holder purchases Common Stock having a total
purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares
of Common Stock with an aggregate sale price giving rise to such purchase obligation of
$10,000, under clause (1) of the immediately preceding sentence the Company shall be
required to pay the Holder $1,000. The Holder shall provide the Company written notice
indicating the amounts payable to the Holder in respect of the Buy-In, together with
applicable confirmations and other evidence reasonably requested by the Company. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it hereunder,
at law or in equity including, without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company’s failure to timely deliver certificates
representing shares of Common Stock upon exercise of the Warrant (or delivery via DWAC
referenced above) as required pursuant to the terms hereof.
(b) As promptly as practicable on or after exercise of the Warrant, the Company shall
issue and deliver to Holder a new Warrant, evidencing the rights of Holder to purchase the
number of Shares for which the Warrant has not been exercised.
(c) This Warrant may also be exercised by means of a “cashless exercise” in which the
Holder shall be entitled to receive a certificate for the number of Warrant Shares equal to
the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = the Fair Market Value on the Trading Day preceding the date of such election;
(B) = the Exercise Price of the Warrant, as adjusted; and
(X) = the number of Warrant Shares issuable upon exercise of the Warrant by means of
a cash exercise rather than a cashless exercise in accordance with the terms of this
Warrant.
“Fair Market Value” means, for any date, the price determined by the first of the
following clauses that applies: (a) the closing price of the Common Stock for the
nearest preceding date prior to the exercise on the primary market or exchange on
which the Common Stock is then listed or quoted as reported by such primary market or
exchange; (b) if the Common Stock is not then listed or quoted on a market or
exchange and if prices for the Common Stock are then quoted on the OTC Bulletin
Board, the closing price of the Common Stock on the nearest preceding date prior to
exercise on the OTC Bulletin Board; (c) if the Common Stock is not then listed or
quoted on the OTC Bulletin Board and if prices for the Common Stock are then reported
in the “Pink Sheets” published by the National Quotation Bureau Incorporated (or a
similar organization or agency succeeding to its functions of reporting prices), the
average of the most recent bid and ask price per share of the
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Common Stock so reported; or (d) in all other cases, the fair market value of a share
of Common Stock as determined in good faith by mutual agreement between the Company’s
Board of Directors and the Holder, based in part on the most recent sale of
securities on an arm’s length basis.
Notwithstanding anything herein to the contrary, on the Termination Date, this Warrant
shall be automatically exercised via cashless exercise pursuant to this Section 3(c).
4. No Fractional Shares or Scrip. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share
which Holder would otherwise be entitled to purchase upon such exercise, the Company shall pay a
cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by
the Exercise Price.
5. Charges, Taxes and Expenses. If certificates for Warrant Shares are requested,
issuance shall be made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such certificate, all of which taxes and expenses
shall be paid by the Company, and such certificates shall be issued in the name of the Holder or in
such name or names as may be directed by the Holder; provided, however, that in the
event certificates for Warrant Shares are to be issued in a name other than the name of the Holder,
the request for exercise shall be accompanied by the Assignment Form attached hereto duly executed
by the Holder; and the Company may require, as a condition thereto, the payment of a sum sufficient
to reimburse it for any transfer tax incidental thereto.
6. Closing of Books. The Company will not close its stockholder books or records in
any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof, unless
required by law or regulation.
7. Transfer, Division and Combination.
(a) Subject to the transfer restrictions imposed by any applicable securities laws and
NASD Rule 2710(g) as set forth in the legend hereto, this Warrant and all rights hereunder
are transferable, in whole or in part, upon surrender of this Warrant at the principal
office of the Company, together with a written assignment of this Warrant substantially in
the form attached hereto duly executed by the Holder or its agent or attorney and funds
sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such
surrender and, if required, such payment, the Company shall execute and deliver a new
Warrant or Warrants in the name of the assignee or assignees and in the denomination or
denominations specified in such instrument of assignment, and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall
promptly be cancelled. A Warrant, if properly assigned (including delivery of the original
warrant to the transferee), may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued.
(b) Subject to the transfer restrictions imposed by NASD Rule 2710(g) as set forth in
the legend hereto, this Warrant may be divided or combined with other Warrants upon
presentation hereof at the aforesaid office of the Company, together with a written notice
specifying the names and denominations in which new Warrants are to be issued, signed by the
Holder or its agent or attorney. Subject to compliance with Section 7(a), as to
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any transfer which may be involved in such division or combination, the Company shall
execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be
divided or combined in accordance with such notice.
(c) The Company shall prepare, issue and deliver at its own expense (other than
transfer taxes) the new Warrant or Warrants under this Section 7.
(d) The Company agrees to maintain, at its aforesaid office, books for the registration
and the registration of transfer of the Warrants.
8. No Rights as Shareholder until Exercise. This Warrant does not entitle the Holder
to any voting rights or other rights as a shareholder of the Company prior to the exercise hereof.
Upon delivery of the Notice of Exercise Form and the payment of the aggregate Exercise Price (or by
means of a cashless exercise), the Warrant Shares so purchased shall be and be deemed to be issued
to such Holder as the record owner of such shares as of the close of business on the later of the
date of such delivery or payment.
9. Loss, Theft, Destruction or Mutilation of Warrant. 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 (including
certification of such evidence by the Holder), and in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to it, 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 of like tenor and dated as of such cancellation, in lieu of such Warrant or stock
certificate.
10. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of
any action or the expiration of any right required or granted herein shall be a Saturday, Sunday or
a legal holiday, then such action may be taken or such right may be exercised on the next
succeeding day not a Saturday, Sunday or legal holiday.
11. Adjustments of Exercise Price and Number of Warrant Shares; Stock Splits, etc. The
number and kind of securities purchasable upon the exercise of this Warrant and the Exercise Price
shall be subject to adjustment from time to time upon the happening of any of the following. In
case the Company shall (i) pay a dividend in shares of Common Stock or make a distribution in
shares of Common Stock to holders of its outstanding Common Stock, (ii) subdivide its outstanding
shares of Common Stock into a greater number of shares, (iii) combine its outstanding shares of
Common Stock into a smaller number of shares of Common Stock, or (iv) issue any shares of its
capital stock in a reclassification of the Common Stock, then the number of Warrant Shares
purchasable upon exercise of this Warrant immediately prior thereto shall be adjusted so that the
Holder shall be entitled to receive the kind and number of Warrant Shares or other securities of
the Company which it would have owned or have been entitled to receive had such Warrant been
exercised in advance thereof. Upon each such adjustment of the kind and number of Warrant Shares
or other securities of the Company which are purchasable hereunder, the Holder shall thereafter be
entitled to purchase the number of Warrant Shares or other securities resulting from such
adjustment at an Exercise Price per Warrant Share or other security obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of Warrant Shares
purchasable pursuant hereto immediately prior to such adjustment and dividing by the number of
Warrant Shares or other securities of the Company resulting from such adjustment. An adjustment
made pursuant to this paragraph shall become effective immediately after the effective date of such
event.
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12. Reorganization, Reclassification, Merger, Consolidation or Disposition of Assets.
In case the Company shall reorganize its capital, reclassify its capital stock, consolidate or
merge with or into another corporation (where the Company is not the surviving corporation or where
there is a change in or distribution with respect to the Common Stock of the Company), or sell,
transfer or otherwise dispose of all or substantially all its property, assets or business to
another corporation and, pursuant to the terms of such reorganization, reclassification, merger,
consolidation or disposition of assets, shares of common stock of the successor or acquiring
corporation, or any cash, shares of stock or other securities or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition to or in lieu of common
stock of the successor or acquiring corporation (“Other Property”), are to be received by
or distributed to the holders of Common Stock of the Company, then the Holder shall have the right
thereafter to receive, upon exercise of this Warrant, instead of the shares of Common Stock, the
number of shares of common stock and/or Other Property receivable upon or as a result of such
reorganization, reclassification, merger, consolidation or disposition of assets by a Holder of the
number of shares of Common Stock for which this Warrant is exercisable immediately prior to such
event. In case of any such reorganization, reclassification, merger, consolidation or disposition
of assets, lawful provision shall be made to ensure the due and punctual observance and performance
by the successor or acquiring corporation of each and every covenant and condition of this Warrant
to be performed and observed by the Company and all the obligations and liabilities hereunder,
subject to such modifications as may be deemed appropriate (as determined in good faith by
resolution of the Board of Directors of the Company) in order to provide for adjustments of Warrant
Shares for which this Warrant is exercisable which shall be as nearly equivalent as practicable to
the adjustments provided for in this Section 12. For purposes of this Section 12, “common stock”
shall include stock of such corporation of any class which is not preferred as to dividends or
assets over any other class of stock of such corporation and which is not subject to redemption and
shall also include any evidences of indebtedness, shares of stock or other securities which are
convertible into or exchangeable for any such stock, either immediately or upon the arrival of a
specified date or the happening of a specified event and any warrants or other rights to subscribe
for or purchase any such stock. The foregoing provisions of this Section 12 shall similarly apply
to successive reorganizations, reclassifications, mergers, consolidations or disposition of assets.
13. Voluntary Adjustment by the Company. The Company may at any time during the term
of this Warrant reduce the then current Exercise Price to any amount and for any period of time
deemed appropriate by the Board of Directors of the Company.
14. Notice of Adjustment. Whenever the number of Warrant Shares or number or kind of
securities or other property purchasable upon the exercise of this Warrant or the Exercise Price is
adjusted, as herein provided, the Company shall give notice thereof to the Holder, which notice
shall state the number of Warrant Shares (and other securities or property) purchasable upon the
exercise of this Warrant and the Exercise Price of such Warrant Shares (and other securities or
property) after such adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such adjustment was made.
15. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders of its Common Stock for the purpose
of entitling them to receive an extraordinary dividend or other distribution, or any right
to subscribe for or purchase any evidences of its indebtedness, any shares of stock of any
class or any other securities or property, or to receive any other right, or
6
(b) there shall be any capital reorganization of the Common Stock, any reclassification
or recapitalization of the capital stock of the Company or any consolidation or merger of
the Company with, or any sale, transfer or other disposition of all or substantially all the
property, assets or business of the Company to, another corporation, or
(c) there shall be a voluntary or involuntary dissolution, liquidation or winding up of
the Company, or
(d) any registration statement registering the resale of the Warrant Shares by the
Holder upon exercise of this Warrant is ineffective or such registration statement is not
then available for use, as reasonably determined by the Company;
then, in any one or more of such cases, the Company shall give to Holder (i) at least 15 days’
prior written notice of the date on which a record date shall be selected for such dividend,
distribution or right or for determining rights to vote in respect of any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition, liquidation or winding up,
and (ii) in the case of any such reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up, at least 15 days’ prior written
notice of the date when the same shall take place, and (iii) in the case of the ineffectiveness of
any registration statement registering the resale of the Warrant Shares by the Holder upon exercise
of this Warrant or unavailability thereof, promptly upon knowledge by the Company of such
occurrence. Such notice in accordance with the foregoing clauses (a)-(c) also shall specify (i)
the date on which any such record is to be taken for the purpose of such dividend, distribution or
right, the date on which the holders of Common Stock shall be entitled to any such dividend,
distribution or right, and the amount and character thereof, and (ii) the date on which any such
reorganization, reclassification, merger, consolidation, sale, transfer, disposition, dissolution,
liquidation or winding up is to take place and the time, if any such time is to be fixed, as of
which the holders of Common Stock shall be entitled to exchange their Warrant Shares for securities
or other property deliverable upon such disposition, dissolution, liquidation or winding up. Such
notice in accordance with clause (d) shall also specify the Company’s good faith belief as to when
a registration statement registering such sale shall be filed or amended or available for use
again. Each such written notice shall be sufficiently given if addressed to Holder at the last
address of Holder appearing on the books of the Company and delivered in accordance with Section
17(e).
16. Authorized Shares. The Company covenants that during the period the Warrant is
outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of
shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights
under this Warrant. The Company further covenants that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the Warrant Shares upon the
exercise of the purchase rights under this Warrant. The Company will take all such reasonable
action as may be necessary to assure that such Warrant Shares may be issued as provided herein
without violation of any applicable law or regulation, or of any requirements of the principal
market or exchange upon which the Common Stock may be listed.
Except and to the extent as waived or consented to by the Holder, the Company shall not by any
action avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking
of all such actions as may be necessary or appropriate to protect the rights of Holder
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as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (a) not increase the par value of any Warrant Shares above the amount
payable therefor upon such exercise immediately prior to such increase in par value, (b) take all
such action as may be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant, and (c) use
commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any
public regulatory body having jurisdiction thereof as may be necessary to enable the Company to
perform its obligations under this Warrant.
Before taking any action which would result in an adjustment in the number of Warrant Shares
for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such
authorizations or exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
17. Registration of Warrant Shares. The Company hereby grants the Holder piggyback
registration rights in accordance with the provisions of this Section 17. For the purposes of this
Section 17, (i) the terms “register,” “registered” and “registration” refer
to a registration effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such registration
statement, and (ii) the term “Registrable Securities” refers to securities obtained or
obtainable upon exercise of the Warrant or securities obtained or obtainable upon exercise,
exchange, or conversion of such securities.
(a) If, at any time after (and not including) the Company’s initial registered public
offering and prior to the Termination Date, the Company proposes to register any of its
equity securities for its own account or the account of any of its stockholders, in
connection with the public offering of such securities (other than a Form S-4 or Form S-8 or
their then equivalents relating to equity securities to be issued solely in connection with
any acquisition of any entity or business or equity securities issuable in connection with
employee stock option or stock benefit plans), the Company shall (i) promptly give to the
Holder written notice thereof, and (ii) upon written request of the Holder given within
twenty (20) days after the mailing of such notice by the Company, subject to the provisions
of Section 17(c), use its reasonable best efforts to include in such registration (and any
related qualification under blue sky laws or other compliance requirements), and in any
underwriting involved therein, all the Registrable Securities specified in the Holder’s
written request. If the Holder decides not to include all of its Registrable Securities in
any registration statement thereafter filed by the Company, such Holder shall nevertheless
continue to have the right to include any Registrable Securities in any subsequent
registration statement or registration statements as may be filed by the Company with
respect to offerings of its securities, all upon the terms and conditions set forth herein.
(b) Notwithstanding the provisions of this Section 17, the Company shall have the right
at any time after it shall have given written notice pursuant to this Section 17
(irrespective of whether a written request for inclusion of any such securities shall have
been made) to elect not to file any such proposed registration statement, or to withdraw the
same after the filing but prior to the effective date thereof. The registration expenses of
such withdrawn registration shall be borne by the Company in accordance with Section 17(e)
hereof.
8
(c) If a registration subject to this Section 17 shall be in connection with an
underwritten public offering and the underwriter or managing underwriter, as the case may
be, shall advise the Company that in its opinion the number of securities requested to be
included in such registration or offering exceeds the number of such securities which can be
sold in such offering, then the Company shall be required to include in the offering only
that number of such securities which the managing underwriter determines in its sole
discretion will not jeopardize the success of the offering (the securities so included to be
allocated first to the Company, second to the Holder and, third, to any other parties
holding registration rights). Additionally, in the event that the Holder desires to
participate in such underwritten registration it agrees to enter into customary agreements
(including, if requested, an underwriting agreement agreed upon between the Company and the
underwriters selected by it), and take such other customary actions in connection therewith
as the Company or the underwriter(s) shall reasonably request in order to consummate such
registration.
(d) Whenever the Company proposes to effect the registration of any of its stock or
other securities in which any Registrable Securities are entitled to participate pursuant to
Section 17, the Company shall:
(i) Prepare and file with the Commission a registration statement with respect to such
Registrable Securities and use its best efforts to cause such registration statement to
become effective and keep such registration statement effective until the distribution
contemplated in the registration statement has been completed.
(ii) Prepare and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection with such registration
statement as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration statement.
(iii) Notify the Holder when such registration statement or any prospectus used in
connection therewith, or any amendment or supplement thereto, has been filed and, with
respect to such registration statement or any post-effective amendment thereto, when the
same has become effective.
(iv) Furnish to the Holder such number of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities Act, and such
other documents as they may reasonably request in order to facilitate the disposition of
Registrable Securities owned by it.
(v) Use its best efforts to register or qualify all Registrable Securities included in
such registration statement under such other securities or blue sky laws of such
jurisdictions as the Holder shall reasonably request (if required to permit such Registrable
Securities to be sold in such jurisdiction(s)) within 20 days following the original filing
of such registration statement and to keep such registration or qualification in effect for
so long as such registration statement remains in effect, and take any other action which
may be reasonably necessary or advisable to enable the Holder to consummate the disposition
in such jurisdictions of such Registrable Securities, except that the Company shall not for
any such purpose be required (A) to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the requirements of this
paragraph (d) be obligated to be so qualified, or (B) to consent to general service of
process in any such jurisdiction.
9
(vi) Notify the Holder at any time when a prospectus relating to such registration
statement covering Registrable Securities is required to be delivered under the Securities
Act of the happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then existing.
(vii) Cause all Registrable Securities included in such registration statement to be
listed, upon official notice of issuance, on any securities exchange or quotation system on
which any of the securities of the same class as the Registrable Securities are then listed.
(viii) In the event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with the managing
underwriter of such offering; provided, however, that the Holder shall not be a beneficiary
under any such agreement unless it is also a party to such agreement. The Holder, to the
extent that it participates in such underwriting, shall also enter into and perform its
obligations under such an agreement.
(e) Except for (i) underwriting discounts and commissions and stock transfer taxes
relating to Registrable Securities, or (ii) any expenses if the payment of such expenses by
the Company is prohibited by the laws of a state in which such offering is qualified and
only to the extent so prohibited, the Company shall bear and pay all expenses incurred in
connection with any registration, filing or qualification of Registrable Securities with
respect to the registrations pursuant to Section 17 for the Holder, including (without
limitation) all registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto and the fees and disbursements of counsel for the Company
in its capacity as counsel to the selling Holder hereunder.
(f) It shall be a condition precedent to the obligations of the Company to take any
action pursuant to this Section 17 with respect to the Registrable Securities of the selling
Holder that such Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of such securities
as the Company may reasonably request in writing and as shall be required to effect the
registration of such Holder’s Registrable Securities. At any time during the effectiveness
of any registration statement covering Registrable Securities offered by the Holder, if such
Holder becomes aware of any change materially affecting the accuracy of the information
contained in such registration statement or the prospectus (as then amended or supplemented)
relating to such Holder, it shall immediately notify the Company of such change.
(g) Upon receipt of any notice from the Company of the happening of any event of the
kind described in subparagraph (d)(vi) of this Section 17, the Holder shall forthwith
discontinue the disposition of Registrable Securities pursuant thereto until such Holder
receives the copies of a supplemented or amended prospectus and, if so directed by the
Company, shall deliver to the Company all copies, other than permanent file copies, then in
such Holder’s possession of the prospectus relating to such Registrable Securities current
at the time of receipt of such notice; provided, however, that the Company
shall use its best efforts to promptly provide a supplement or amended prospectus to the
Holder to allow the Holder to continue with the disposition of Registrable Securities
hereunder.
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(h) The registration rights set forth in this Section 17 shall terminate upon the
earlier of (i) such time as all of the Registrable Securities have been sold by the Holder;
(ii) such time as all of the Registrable Securities held by the Holder could be sold within
a 90-day period pursuant to Rule 144 under the Securities Act, and (iii) the Termination
Date.
18. Indemnification in Connection with Registration.
(a) If any of the Registrable Securities are being registered pursuant to Section 17
above, the Company will indemnify and hold harmless the Holder, each of its directors,
officers and any other person who controls the Holder within the meaning of the Securities
Act, against any losses, claims, damages, or liabilities, joint or several, to which the
Holder or any such director, officer or controlling person may be subject under the
Securities Act or otherwise; and it will reimburse the Holder and any such director, officer
and controlling person for any legal or other expenses reasonably incurred by the Holder or
any such director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability, or action, insofar as such losses,
claims, damages, or liabilities, joint or several (or actions in respect thereof), arise out
of or are based upon any untrue statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any such registration statement or any
preliminary prospectus or final prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable in any case to the
extent that any loss, claim, damage, or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in any
registration statement, preliminary prospectus, final prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with written information furnished by
the Holder for use in the preparation thereof.
(b) Promptly after receipt by an indemnified party under subparagraph (a) above of
notice of the commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Company, notify the Company of the commencement thereof;
but the omission to notify the Company will not relieve it from any liability that it may
have to any indemnified party otherwise than under subparagraph (a).
(c) If any such action is brought against any indemnified party and it notifies the
Company of the commencement thereof, the Company will be entitled to participate in, and, to
the extent that it may wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; and after notice from the Company to such
indemnified party of its election to assume the defense thereof, the Company will not be
liable to such indemnified party for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than reasonable costs of
investigation.
(d) The obligations of the Company and Holder under this Section 18 shall survive the
completion of any offering of Registrable Securities in a registration statement under
Section 18, and otherwise.
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19. Miscellaneous.
(a) Rule 144 Compliance. The Company agrees that until all Warrant Shares have
been sold under a registration statement or pursuant to Rule 144 under the Securities Act,
it will keep current in filing all materials required to be filed with the Commission in
order to permit the Holder to sell the same under Rule 144.
(b) Jurisdiction. This Warrant shall constitute a contract under the laws of
California, without regard to its conflict of law, principles or rules.
(c) Restrictions. The Holder acknowledges that the Warrant Shares acquired
upon the exercise of this Warrant, if not registered or otherwise eligible for resale
pursuant to Rule 144(k) under the Securities Act, will have restrictions upon resale imposed
by state and federal securities laws. If, at the time of the exercise of this Warrant the
Warrant Shares shall not be registered pursuant to an effective registration statement or
eligible for resale pursuant to Rule 144(k) under the Securities Act, the Company may
require, as a condition of allowing such transfer, that the Holder furnish to the Company a
written opinion of counsel (which opinion shall be in form, substance and scope customary
for opinions of counsel in comparable transactions and reasonably satisfactory to counsel to
the Company) to the effect that such transfer may be made without registration under the
Securities Act and under applicable state securities or blue sky laws.
(d) Nonwaiver and Expenses. No course of dealing or any delay or failure to
exercise any right hereunder on the part of Holder shall operate as a waiver of such right
or otherwise prejudice Holder’s rights, powers or remedies, notwithstanding all rights
hereunder terminate on the Termination Date. If the Company willfully and knowingly fails
to comply with any provision of this Warrant, which results in any material damages to the
Holder, the Company shall pay to Holder such amounts as shall be sufficient to cover any
costs and expenses including, but not limited to, reasonable attorneys’ fees, including
those of appellate proceedings, incurred by Holder in collecting any amounts due pursuant
hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
(e) NASD Rules. Notwithstanding anything contained in this Warrant, the terms
of this Warrant are intended to comply with the rules and regulations of the National
Association of Securities Dealers, Inc. relating to the compensation of underwriters and
placement agents, and any provision of this Warrant that is determined to be inconsistent
with such rules shall be deemed to be modified to the extent necessary to comply with such
rules.
(f) Notices. All notices, demands, and other communications given or delivered
under this Warrant shall be in writing and shall be deemed to have been given, (i) when
received if given in person, (ii) on the date of electronic confirmation of receipt if sent
by telex, facsimile or other wire transmission and also promptly mailed by registered or
certified mail (return receipt requested), (iii) three (3) business days after being
deposited in the U.S. mail, certified or registered mail, postage prepaid, or (iv) one (1)
business day after being deposited with a nationally-recognized overnight courier in
circumstances under which such courier guarantees next business day delivery. Notices,
demands, and communications to the parties to this Warrant shall, unless another address is
specified in writing in the manner set forth herein, be sent to the address or facsimile
number indicated below:
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| If to Holder: | ||||||
| ___________________________ | ||||||
| ___________________________ | ||||||
| ___________________________ | ||||||
| Attn: _______________________ | ||||||
| Telephone: __________________ | ||||||
| Facsimile: ___________________ | ||||||
| If to the Company: | ||||||
| Oculus Innovative Sciences, Inc. | ||||||
| 0000 X. XxXxxxxx Xxxx. | ||||||
| Xxxxxxxx, Xxxxxxxxxx 00000 | ||||||
| Attn: Chief Executive Officer | ||||||
| Telephone: (____) _____________ | ||||||
| Facsimile: (___) _______________ | ||||||
(g) Limitation of Liability. No provision hereof, in the absence of any
affirmative action by Holder to exercise this Warrant or purchase Warrant Shares, and no
enumeration herein of the rights or privileges of Holder, shall give rise to any liability
of Holder for the purchase price of any Common Stock or as a stockholder of the Company,
whether such liability is asserted by the Company or by creditors of the Company.
(h) Remedies. Holder, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled to specific performance of
its rights under this Warrant. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the provisions of
this Warrant and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(i) Successors and Assigns. Subject to applicable securities laws, this
Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be
binding upon the successors of the Company and the successors and permitted assigns of
Holder. The provisions of this Warrant are intended to be for the benefit of all Holders
from time to time of this Warrant and shall be enforceable by any such Holder or holder of
Warrant Shares.
(j) Amendment. This Warrant may be modified or amended or the provisions
hereof waived with the written consent of the Company and the Holder; provided,
however, if this Warrant is subsequently transferred, this Warrant may be modified
or amended or the provisions hereof waived with the written consent of such transferees (and
the original Holder if such Holder holds any part of the Warrant at such time) holding
Warrant(s) exercisable into a majority of the Warrant Shares then issuable under the
Warrants derived from the initial Warrant.
(k) Severability. Wherever possible, each provision of this Warrant shall be
interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Warrant shall be prohibited by or invalid under applicable law, such
13
provision shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of this Warrant.
(l) Headings. The headings used in this Warrant are for the convenience of
reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer
thereunto duly authorized.
Dated: ______ __, 200_
| Oculus Innovative Sciences, Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Agreed and Accepted as of _________, 200__
_______________________
By: |
||
Name: |
||
Title: |
||
15
NOTICE OF EXERCISE
(1) The undersigned hereby elects to purchase ___Warrant Shares of Oculus Innovative
Sciences, Inc. 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) Payment shall take the form of (check applicable box):
| [ ] in lawful money of the United States | |||
| [ ] the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 3(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 3(c). |
(3) Please issue a certificate or certificates representing said Warrant Shares in the name of
the undersigned or in such other name as is specified below:
The Warrant Shares shall be delivered to the following DTC account (if permitted) or by physical
delivery of a certificate to:
| [____________________________________] |
|||||
| By: | |||||
| Name: | |||||
| Title: | |||||
| Dated: | |||||
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute
this form and supply required information and original Warrant.
Do not use this form to exercise the warrant.)
this form and supply required information and original Warrant.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned
to
___________________________ whose address is
______________________________________________.
______________________________________________
Dated: ______________, _______
| Holder’s Signature: | _____________________ | |||
| Holder’s Address: | _____________________ | |||
| _____________________ | ||||
| Signature Guaranteed: | _______________________ | |||
NOTE: The signature to this Assignment Form must correspond with the name as it appears on the
face of the Warrant, without alteration or enlargement or any change whatsoever, and must be
guaranteed by a bank or trust company. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign the foregoing
Warrant. An opinion of legal counsel may be required.
