Exhibit 10.4
Exhibit
10.4 Common Stock Purchase Warrant dated June 22, 2009,
between the Company and Margaret Wong
|
Warrant No.
0001
|
350,000 Shares
|
OCTUS, INC.
WARRANT TO
PURCHASE
SHARES OF COMMON
STOCK
THE
SECURITIES REPRESENTED HEREBY, INCLUDING THE COMMON STOCK ISSUABLE
UPON EXERCISE HEREOF, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). NO TRANSFER OF SUCH
SECURITIES WILL BE PERMITTED UNLESS A REGISTRATION STATEMENT UNDER
THE ACT IS IN EFFECT AS TO SUCH TRANSFER, SATISFACTORY EVIDENCE IS
PROVIDED TO THE CORPORATION THAT THE TRANSFER IS MADE IN ACCORDANCE
WITH RULE 144 UNDER THE ACT OR, IN THE OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION, REGISTRATION UNDER THE ACT IS
UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE
ACT. SUCH TRANSFER MUST ALSO COMPLY WITH APPLICABLE
STATE SECURITIES LAWS. THE CORPORATION MAY REQUIRE THE
HOLDER TO BEAR THE COSTS AND EXPENSES ASSOCIATED
WITH: (1) THE LEGAL OPINION REFERRED TO ABOVE AND (2)
ANY OTHER ACTIONS REQUIRED TO COMPLY WITH THE ACT AND APPLICABLE
STATE SECURITIES LAWS.
THESE
SECURITIES, INCLUDING THE COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF, ARE SUBJECT TO, AND TRANSFERABLE ONLY UPON COMPLIANCE WITH,
THE PROVISIONS OF A SUBSCRIPTION AGREEMENT, A COPY OF WHICH IS ON
FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF THE
CORPORATION. SUCH SUBSCRIPTION AGREEMENT PROVIDES, AMONG
OTHER THINGS, FOR A MARKET STAND-OFF AGREEMENT AND CERTAIN OTHER
RESTRICTIONS ON THE SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION OF
THESE SECURITIES.
THIS CERTIFIES THAT , for value received, (" Holder ")
is entitled to purchase Three Hundred Fifty Thousand (350,000)
fully paid and non-assessable shares of the unregistered,
restricted Common Stock (" Common Stock ") of OCTUS,
INC., a Nevada corporation (the " Company
").
1. Exercise of Warrant
. The terms
and conditions upon which this Warrant may be exercised and the
Common Stock covered hereby (the " Warrant Stock ")
may be purchased are as follows:
1.1 Term .
This Warrant may be
exercised in whole or in part at any time after the date set forth
above but in no case may this Warrant be exercised later than 5:00
p.m., Davis, California, U.S.A. local time at anytime prior to One
Hundred Eighty (180) days from the issuance of this Warrant, after
which time this Warrant shall terminate and shall be void and of no
further force or effect.
1.2 Purchase Price
. The
per-share purchase price for the shares of Stock to be issued upon
exercise of this Warrant shall be One Cent ($0.01), subject to
adjustment as provided in Section 2.
1.3 Method of Exercise
.
1.3.1 Cash
Exercise . The purchase rights represented by
this Warrant may be exercised by Holder, in whole or in part, by
the surrender of this Warrant at the principal office of the
Company, located at the address set forth on the signature page
hereof, accompanied by the form of Notice of Cash Exercise attached
hereto as Exhibit "A" , and by the payment to the
Company, by cash or by certified, cashier's or other check
acceptable to the Company, of an amount equal to the aggregate
purchase price of the shares of Warrant Stock purchased.
1.3.2 Net Issue
Exercise . In lieu of exercising this Warrant
pursuant to Section 1.3.1, Holder may elect to receive shares
equal to the value of this Warrant determined in the manner
described below (or of any portion thereof remaining unexercised)
by surrender of this Warrant at the principal office of the Company
together with the form of Notice of Exercise of Common Stock
Warrant Pursuant to Net Issue ("Cashless") Exercise Provisions
attached hereto as Exhibit "B" , in which event the
Company shall issue to Holder a number of shares of the Company's
Common Stock computed using the following formula:
X = Y (A-B)
A
Where X = the number of shares of Warrant Stock
to be issued to Holder.
Y = the number of shares of Warrant
Stock purchasable under this Warrant (at the date of such
calculation).
A = the fair market value of one
share of the Company's Common Stock (at the date of such
calculation).
B = Warrant Price (as adjusted to
the date of such calculation).
1.3.3 Fair Market Value
. For
purposes of this Section 1.2, fair market value of one share of the
Company's Common Stock shall be determined in good faith by the
Company's Board of Directors.
1.4 Issuance of Shares
. In the
event of any exercise of the rights represented by this Warrant,
certificates for the shares of Common Stock so purchased shall be
delivered to Holder within a reasonable time and, unless this
Warrant has been fully exercised or has expired, a new Warrant
representing the remaining unexercised number of shares shall also
be issued to Holder at such time.
2. Certain Adjustments
.
2.1 Merger; Consolidation or
Sale of Assets . If
at any time there shall be a capital reorganization (other than a
combination or subdivision of Warrant Stock otherwise provided for
in this Warrant), or a merger or consolidation of the Company with
or into another corporation, or the sale of the Company's
properties and assets as, or substantially as, an entirety to any
other person, then, as a part of such reorganization, merger,
consolidation or sale, lawful provision shall be made so that
the Holder shall thereafter be entitled to receive upon exercise of
this Warrant, during the period specified in this Warrant and upon
payment of the purchase price, the number of shares of stock or
other securities or property of the Company or the successor
corporation resulting from such reorganization, merger,
consolidation or sale to which a holder of the Common Stock
deliverable upon exercise of this Warrant would have been entitled
under the provisions of the agreement in such reorganization,
merger, consolidation or sale if this Warrant had been exercised
immediately before that reorganization, merger, consolidation
or sale. In any such case, appropriate adjustment (as determined in
good faith by the Company's Board of Directors) shall be made in
the application of the provisions of this Warrant with respect to
the rights and interests of the Holder after the reorganization,
merger, consolidation or sale to the end that the provisions of
this Warrant (including adjustment of the purchase price then in
effect and the number of shares of Warrant Stock) shall be
applicable after that event, as nearly as reasonably may be, in
relation to any shares or other property deliverable after that
event upon exercise of this Warrant.
2.2 Splits and
Subdivisions . In the event the Company should at
any time or from time to time fix a record date for the
effectuation of a split or subdivision of the outstanding shares of
Common Stock or the determination of the holders of Common Stock
entitled to receive a dividend or other distribution payable in
additional shares of Common Stock or other securities or rights
convertible into, or entitling the holder thereof to receive
directly or indirectly, additional shares of Common Stock
(hereinafter referred to as the " Common Stock
Equivalents ") without payment of any consideration by such
holder for the additional shares of Common Stock or Common Stock
Equivalents (including the additional shares of Common Stock
issuable upon conversion or exercise thereof), then, as of such
record date (or the date of such distribution, split or subdivision
if no record date is fixed), the purchase price set forth in
Section 1.2 shall be appropriately decreased and the number of
shares of Warrant Stock shall be appropriately increased in
proportion to such increase of outstanding shares.
2.3 Combination of Shares
. If the
number of shares of Common Stock outstanding at any time after the
date of this Warrant is decreased by a combination of the
outstanding shares of Common Stock, the purchase price set forth in
Section 1.2 shall be appropriately increased and the number of
shares of Warrant Stock shall be appropriately decreased in
proportion to such decrease in outstanding shares.
