Exhibit
10.10
NEITHER THIS SECURITY NOR THE
SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE 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. THIS SECURITY AND THE SECURITIES
ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY
SUCH SECURITIES.
THIS WARRANT DOES NOT REQUIRE
PHYSICAL SURRENDER OF THE WARRANT IN THE EVENT OF A PARTIAL
EXERCISE. AS A RESULT, FOLLOWING ANY EXERCISE OF ANY PORTION OF
THIS WARRANT, THE NUMBER OF SHARES OF COMMON STOCK FOR WHICH THIS
WARRANT MAY BE EXERCISED MAY BE LESS THAN THE NUMBER OF SHARES SET
FORTH BELOW.
Issuance Date: June 24,
2009
OPHTHALMIC IMAGING
SYSTEMS
PURCHASE
WARRANT
WARRANT
(“WARRANT”) TO PURCHASE SHARES OF
COMMON STOCK, NO PAR VALUE
PER SHARE
This is to certify that, FOR VALUE RECEIVED, [
] (“Warrantholder”), is entitled to purchase, subject
to the provisions of this Warrant, from OPHTHALMIC IMAGING SYSTEMS,
a corporation organized under the laws of California
(“Company”), at any time and from time to time after
the issuance hereof but not later than 11:59 P.M., Eastern
time, on the third (3 rd ) anniversary of the Issuance
Date hereof (“Expiration Date”), [
] shares (“Warrant Shares”) of Common Stock, no par
value (“Common Stock”), of the Company, at an exercise
price per share equal to $1.00 (the exercise price in effect from
time to time hereafter being herein called the “Warrant
Price”). The number of Warrant Shares purchasable upon
exercise of this Warrant and the Warrant Price shall be subject to
adjustment from time to time as described herein.
This Warrant has been issued
pursuant to the terms of the Purchase Agreement (“Purchase
Agreement”) dated on or about the date hereof between the
Company and the Warrantholder. Capitalized terms used herein and
not defined shall have the meaning specified in the Purchase
Agreement.
Section
1.
Registration . The Company shall maintain books for the
transfer and registration of the Warrant. Upon the initial issuance
of the Warrant, the Company shall issue and register the Warrant in
the name of the Warrantholder.
Section
2. Transfers
. As provided herein, this Warrant may be transferred only pursuant
to a registration statement filed under the Securities Act of 1933,
as amended (“Securities Act”) or an exemption from
registration thereunder. Subject to such restrictions, the Company
shall transfer this Warrant from time to time, upon the books to be
maintained by the Company for that purpose, upon surrender hereof
for transfer properly endorsed or accompanied by appropriate
instructions for transfer upon any such transfer, and a new Warrant
shall be issued to the transferee and the surrendered Warrant shall
be canceled by the Company.
Section 3.
(a)
Exercise of Warrant . Subject to the provisions hereof, the
Warrantholder may exercise this Warrant in whole or in part at any
time and from time to time on and after the Exercise Date upon
surrender of the Warrant, together with delivery of the duly
executed Warrant exercise form attached hereto (the “Exercise
Agreement”) (which may be by fax or email), to the Company
during normal business hours on any business day at the
Company’s principal executive offices (or such other office
or agency of the Company as it may designate by notice to the
holder hereof), and upon payment to the Company in cash, by
certified or official bank check or by wire transfer for the
account of the Company of the Warrant Price for the Warrant Shares
specified in the Exercise Agreement. The Warrant Shares so
purchased shall be deemed to be issued to the holder hereof or such
holder’s designee, as the record owner of such shares, as of
the close of business on the date on which the completed Exercise
Agreement shall have been delivered to the Company (or such later
date as may be specified in the Exercise Agreement). Certificates
for the Warrant Shares so purchased, representing the aggregate
number of shares specified in the Exercise Agreement, shall be
delivered to the holder hereof within a reasonable time, not
exceeding three (3) business days, after this Warrant shall have
been so exercised. The certificates so delivered shall be in such
denominations as may be requested by the holder hereof and shall be
registered in the name of such holder or such other name as shall
be designated by such holder. If this Warrant shall have been
exercised only in part, then, unless this Warrant has expired, the
Company shall (subject to Section 3(b) below), at its expense, at
the time of delivery of such certificates, deliver to the holder a
new Warrant representing the number of shares with respect to which
this Warrant shall not then have been exercised. In lieu of
delivering physical certificates representing the shares of Common
Stock issuable upon exercise of this Warrant, provided the
Company’s transfer agent is participating in the Depository
Trust Company (“DTC”) Deposit/Withdrawal at Custodian
(“DWAC”) system, upon request of the Warrantholder, the
Company shall use commercially reasonable efforts to cause its
transfer agent to electronically transmit such shares issuable upon
exercise to the Warrantholder (or its designee), by crediting the
account of the Warrantholder’s (or such designee’s)
prime broker with DTC through its DWAC system (provided that the
same time periods herein as for stock certificates shall
apply).
(b)
Book-Entry . Notwithstanding anything to the contrary set
forth herein, upon exercise of any portion of this Warrant in
accordance with the terms hereof, the Warrantholder shall not be
required to physically surrender this Warrant to the Company unless
such holder is purchasing the full amount of Warrant Shares
represented by this Warrant. The Warrantholder and the Company
shall maintain records showing the number of Warrant Shares so
purchased hereunder and the dates of such purchases or shall use
such other method, reasonably satisfactory to the Warrantholder and
the Company, so as not to require physical surrender of this
Warrant upon each such exercise. The Warrantholder and any
assignee, by acceptance of this Warrant or a new Warrant,
acknowledge and agree that, by reason of the provisions of this
paragraph, following exercise of any portion of this Warrant, the
number of Warrant Shares which may be purchased upon exercise of
this Warrant may be less than the number of Warrant Shares set
forth on the face hereof.
(c)
Cashless Exercise . During any time following the date which
is nine (9) months following the Issuance Date hereof that there is
not an effective registration statement and current prospectus
covering the resale of the Warrant Shares by the Warrantholder, the
Warrantholder shall have the right to pay the aggregate Warrant
Price by “Cashless Exercise”. To effect a Cashless
Exercise, the holder shall submit to the Company on the Exercise
Agreement written notice of the holder’s intention to do so,
including a calculation of the number of shares of Common Stock to
be issued upon such exercise in accordance with the terms hereof.
In the event of a Cashless Exercise, in lieu of paying the Warrant
Price in cash, the holder shall surrender this Warrant for that
number of shares of Common Stock determined by multiplying the
number of Warrant Shares to which it would otherwise be entitled by
a fraction, the numerator of which shall be the difference between
the then current Fair Market Value per share of the Common Stock
and the applicable Warrant Price, and the denominator of which
shall be the then current Fair Market Value per share of the Common
Stock. For this purpose, the “Fair Market Value” of the
Common Stock shall be the average of the closing sale prices of the
Common Stock as reported by the Principal Market for the ten (10)
Trading Days immediately preceding the date of the Exercise
Agreement.
Section
4. Compliance
with the Securities Act of 1933 . Neither this Warrant nor the
Common Stock issued upon exercise hereof nor any other security
issued or issuable upon exercise of this Warrant may be offered or
sold except as provided in this Warrant and in conformity with the
Securities Act of 1933, as amended, and then only against receipt
of an agreement of such person to whom such offer of sale is made
to comply with the provisions of this Section 4 with respect to any
resale or other disposition of such security. The Company may cause
the legend set forth on the first page of this Warrant to be set
forth on each Warrant or similar legend on any security issued or
issuable upon exercise of this Warrant until the Warrant Shares
have been registered for resale under the Registration Rights
Agreement or until Rule 144 is available, unless counsel for the
Company is of the opinion as to any such security that such legend
is unnecessary.
Section
5. Payment of
Taxes . The Company will pay any documentary stamp taxes
attributable to the initial issuance of Warrant Shares issuable
upon the exercise of the Warrant; provided, however, that the
Company shall not be required to pay any tax or taxes which may be
payable in respect of any transfer involved in the issuance or
delivery of any certificates for Warrant Shares in a name other
than that of the registered holder of this Warrant in respect of
which such shares are issued. The holder shall be responsible for
income taxes due under federal or state law, if any such tax is
due.
Section
6. Mutilated or
Missing Warrants . In case this Warrant shall be mutilated,
lost, stolen, or destroyed, the Company shall issue in exchange and
substitution of and upon cancellation of the mutilated Warrant, or
in lieu of and substitution for the Warrant lost, stolen or
destroyed, a new Warrant of like tenor and for the purchase of a
like number of Warrant Shares, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or
destruction of the Warrant, and with respect to a lost, stolen or
destroyed Warrant, reasonable indemnity or bond with respect
thereto, if reasonably requested by the Company.
Section
7. Reservation
of Common Stock . The Company hereby represents and warrants
that there have been reserved, and the Company shall at all
applicable times keep reserved, out of the authorized and unissued
Common Stock, a number of shares sufficient to provide for the
exercise of the rights of purchase represented by the Warrant in
full (without regard to any restrictions on beneficial ownership
contained herein), and the transfer agent for the Common Stock,
including every subsequent transfer agent for the Common Stock or
other shares of the Company’s capital stock issuable upon the
exercise of any of the right of purchase aforesaid (“Transfer
Agent”), shall be irrevocably authorized and directed at all
times to reserve such number of authorized and unissued shares of
Common Stock as shall be requisite for such purpose. The Company
agrees that all Warrant Shares issued upon exercise of the Warrant
in accordance with its terms shall be, at the time of delivery of
the certificates for such Warrant Shares, duly authorized, validly
issued, fully paid and non-assessable shares of Common Stock of the
Company. The Company will keep a conformed copy of this Warrant on
file with its Transfer Agent. The Company will supply from time to
time the Transfer Agen
