WARRANT TO PURCHASE SHARES OF COMMON STOCK, NO PAR VALUE, OF ROCKWELL MEDICAL TECHNOLOGIES, INC.
Exhibit 4.13
THIS STOCK PURCHASE WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. IT MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE
OF REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES
LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THIS WARRANT IS ALSO SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN SECTION 5 HEREOF.
WARRANT TO PURCHASE SHARES
OF COMMON STOCK, NO PAR VALUE, OF
ROCKWELL MEDICAL TECHNOLOGIES, INC.
OF COMMON STOCK, NO PAR VALUE, OF
ROCKWELL MEDICAL TECHNOLOGIES, INC.
February 16, 2011
THIS STOCK PURCHASE WARRANT (“Warrant”) CERTIFIES THAT, for value received, subject to the
provisions hereinafter set forth, DaVita Inc. (the “Holder”) is entitled to purchase from Rockwell
Medical Technologies, Inc., a Michigan corporation, and its successors and assigns (the “Company”)
up to 100,000 shares (the “Warrant Shares”) of common stock of the Company, no par value (the
“Common Stock”). This Warrant is the “Warrant Agreement” issued in accordance with that certain
Products Purchase Agreement, dated as of February 16, 2011, between the Company and Holder (the
“Agreement”). This Warrant is subject to the provisions and adjustments, and exercise hereof is
subject to and will be made on the terms and conditions, hereinafter set forth.
The following is a statement of the rights of the Holder of this Warrant and the terms and
conditions to which this Warrant is subject, to which terms the Holder hereof, by acceptance of
this Warrant, assents.
1. EXERCISE OF WARRANT
(a) The Warrant shall become exercisable in full on the first day immediately following the
end of the Initial Term (as defined in the Agreement) (the “Exercise Date”). The exercise price
for the Warrant Shares is $10.25 per share (the “Exercise Price”). On and after the Exercise Date,
subject to the conditions set forth herein, this Warrant may be exercised in whole at any time or
in part from time to time until the close of business on the Expiration Date (as defined below) by
the Holder by the surrender of this Warrant at the principal office of the Company, accompanied by
a signed notice of exercise in the form attached hereto and payment to the Company of the Exercise
Price in the manner set forth below for each of the Warrant Shares intended to be purchased. Such
payment shall be made by Holder to the Company in the form of cash, a certified or cashier’s check
or by means of the cashless method described in Section 1(b) of this Warrant. Notwithstanding any
other provision in this Warrant to the contrary, this Warrant shall not be deemed exercised until
payment in full of the applicable Exercise Price for the
Warrant Shares to be purchased has been received by the Company as specified in this Section
1. The Warrant will expire at the earlier of (i) the close of business on the 90th day
immediately following the completion of the Initial Term (as defined in the Agreement), or (ii) the
termination of the Agreement by the Company pursuant to Section 2.4 thereof (the earlier of such
dates being the “Expiration Date”). If the Expiration Date shall occur prior to the Exercise Date,
the Warrant shall expire without becoming exercisable.
(b) The Holder may exercise the Warrant by the surrender of this Warrant at the principal
office of the Company on or before the Expiration Date together with a written notice of cashless
exercise, in which event the Company shall issue to the Holder the number of shares of Common Stock
determined as follows:
X =
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(Y x (A-B))/A | |
| where: | ||
X =
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the number of shares of Common Stock to be issued to the Holder; | |
Y =
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the number of Warrant Shares with respect to which this Warrant is being exercised; | |
A =
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the average of the high and low trading prices per share of the Common Stock on the Nasdaq Stock Market for the five trading days immediately preceding (but not including) the date of exercise. | |
B =
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the Exercise Price (as adjusted to the date of such calculation). | |
2. ADJUSTMENTS
(a) In the event the Company shall (i) pay a dividend to the holders of Common Stock in shares
of Common Stock, (ii) subdivide its outstanding shares of Common Stock into a greater number of
shares, or (iii) combine its outstanding shares of Common Stock into a smaller number of shares,
then (A) the number of Warrant Shares that, at such time, remain available for purchase pursuant to
this Warrant (“Available Warrant Shares”) shall be adjusted so that such amount is equal to the
number of shares of Common Stock which Holder would have owned immediately after such event had the
number of Available Warrant Shares immediately prior to the occurrence of such event been owned on
the record date for such event and (B) the Exercise Price shall be adjusted by multiplying the
Exercise Price in effect immediately prior to such event by a fraction (x) the numerator of which
is the total number of outstanding shares of Common Stock immediately prior to such event, and (y)
the denominator of which shall be the total number of outstanding shares of Common Stock
immediately after such event. Such adjustment shall become effective immediately after the opening
of business on the day following such record date or the day upon which such dividend, subdivision
or combination becomes effective.
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(b) In the event the Company shall (i) issue by reclassification of its Common Stock any
shares of the Company of any class or series, (ii) merge or consolidate with or into another entity
(other than a merger in which the Company is the surviving entity and which does not result in any
reclassification of the outstanding shares of Common Stock), (iii) sell or otherwise convey to
another entity all or substantially all of the assets of the Company followed by the distribution
of the proceeds thereof to the shareholders of the Company, or (iv) engage in a share exchange
involving all or substantially all of the stock of the Company, then the Holder shall thereafter be
entitled to receive upon the exercise of this Warrant, instead of the Available Warrant Shares, the
consideration which the Holder would have owned immediately after such event had the Available
Warrant Shares been owned immediately prior to the occurrence of such event.
(c) No adjustment shall be required unless such adjustment would require an increase or
decrease of at least one-tenth of a share in the number of Warrant Shares, or at least one-tenth of
a cent in the Exercise Price; provided, however, that any adjustment which by reason hereof is not
required to be made shall be carried forward and taken into account in any subsequent adjustment.
(d) No fractional shares of Common Stock shall be issued upon exercise of this Warrant. The
number of shares issued shall instead be rounded down to the nearest whole share and any fractional
share disregarded.
(e) In the event that, as a result of an adjustment made pursuant to this Section 2, the
Holder shall become entitled to receive any shares of capital stock of the Company other than
shares of Common Stock, the number of such other shares so receivable upon exercise of this Warrant
shall be subject thereafter to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Warrant Shares contained in this
Warrant.
(f) The Company shall not, by amendment of its Articles of Incorporation or through any
reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by the Company, but will at
all times in good faith assist in the carrying out of all of the provisions of this Section 2.
3. FULLY PAID STOCK
The Company agrees that the Warrant Shares delivered upon exercise of this Warrant as herein
provided shall, at the time of such delivery, be fully paid and non-assessable, and free from all
liens and charges with respect to the purchase thereof. During the period within which this
Warrant may be exercised for Common Stock, the Company will at all times have authorized, and hold
in reserve for issuance upon exercise of this Warrant, a sufficient number of shares of Common
Stock to provide for the exercise of this Warrant.
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4. LOST OR STOLEN WARRANTS
In case this Warrant shall be mutilated, lost, stolen or destroyed, the Company shall issue a
new Warrant of like date, tenor, and denomination and deliver the same in exchange and substitution
for and upon surrender and cancellation of any mutilated Warrant, or in lieu of the lost, stolen or
destroyed Warrant, upon receipt of an indemnity agreement or bond from Holder reasonably
satisfactory to the Company.
5. ASSIGNMENT
This Warrant may not be Transferred (as defined below) without the prior written consent of
the Company; provided, however, that if the Agreement is Transferred in accordance with the terms
thereof, this Warrant may be Transferred to the transferee of the Agreement. A “Transfer” means any
sale, transfer, assignment, pledge, mortgage, exchange, hypothecation, grant of a security interest
or other direct or indirect disposition or encumbrance of an interest (including by operation of
law) or the rights thereof. The Company shall deem and treat the Holder (or any successor holder
to whom this Warrant is Transferred in accordance with this Section 5) as the absolute owner of
this Warrant, notwithstanding any notations of ownership or writing hereon made by anyone other
than the Company, for all purposes and shall not be affected by any notice to the contrary. Any
attempted Transfer of this Warrant without compliance with this Section 5 shall be null and void.
6. SECURITIES MATTERS
(a) Neither this Warrant nor the Warrant Shares have been registered under the Securities Act
of 1933, as amended (the “Act”), or any applicable “Blue Sky” laws.
(b) By exercising this Warrant, Holder (or any successor holder to whom this Warrant is
Transferred in accordance with Section 5) is deemed to represent and warrant to the Company that
(i) Holder is an “accredited investor” as defined in Rule 501 of Regulation D promulgated under the
Act and was not organized for the purpose of acquiring the Warrant or the Warrant Shares; (ii)
Holder’s financial condition is such that it is able to bear the risk of holding the Warrant Shares
for an indefinite period of time and could afford a complete loss on such investment; (iii) Holder
has sufficient knowledge and experience in investing in companies similar to the Company so as to
be able to evaluate the risks and merits of its investment in the Company and has so evaluated the
risks and merits of such investment, understands that an investment in the Warrant Shares involves
a significant degree of risk, including a risk of total loss of Holder’s investment, and
understands the risk factors included, or that may be included in the future, in the Company’s
periodic reports filed from time to time with the Securities and Exchange Commission; (iv) Holder
acknowledges that the Company has made available copies of its annual, quarterly and other reports
and documents filed with the Securities and Exchange Commission pursuant to Sections 13(a), 14(a),
14(c) and 15(d) of the Securities Exchange Act of 1934, as amended, and the information
incorporated in such reports and documents by reference, and acknowledges that, a reasonable time
before Holder’s exercise of the Warrant, it has reviewed such reports and documents, has had the
opportunity to ask questions about the Company and the Warrant Shares, that
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such questions have been answered to Holder’s satisfaction, and that it has obtained all other
information with respect to an investment in the Warrant Shares that it has requested from the
Company; and (v) Holder is acquiring the Warrant Shares for its own account for investment and not
for resale or with a view to distribution thereof in violation of the Securities Act of 1933.
Except to the extent that the sale of the Warrant Shares by the Company upon exercise of the
Warrant has been registered under the Act, each and every certificate representing Warrant Shares
delivered upon exercise of this Warrant shall bear the following legend:
| THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED. |
(c) Anything to the contrary herein notwithstanding, the Company’s obligation to sell and
deliver Common Stock pursuant to the exercise of this Warrant is subject to its receipt of
satisfactory assurance that the issuance of such shares shall not violate any of the provisions of
the Act or the rules and regulations of the Securities and Exchange Commission promulgated
thereunder. No Warrant Shares shall be issued until counsel for the Company has determined that
the Company has complied with all requirements under applicable securities laws.
7. NO RIGHTS AS SHAREHOLDER
Nothing contained in this Warrant shall be construed as conferring upon the Holder any rights
as a shareholder of the Company.
8. MISCELLANEOUS
(a) All covenants and agreements of the Company in this Warrant shall be binding upon the
Company’s successors and assigns. All covenants and provisions hereof by or for the benefit of the
Holder shall bind and inure to the benefit of its successors and permitted assigns hereunder.
(b) This Warrant shall be construed and enforced in accordance with the laws of the State of
Michigan without regard to choice of law principles that would compel the application of the law of
any other jurisdiction.
(c) Except as provided in Section 2, this Warrant may be amended only with the written consent
of the Company and the Holder.
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(d) Any notices or other communications required or permitted hereunder shall be sufficiently
given if in writing and delivered in person or sent by United States mail, by registered mail,
postage prepaid, or by courier or express delivery service (including, without limitation, Federal
Express and UPS), and if to the Holder, addressed to the Holder at 00000 Xxxx Xxxxxxx, Xxxxxx,
Xxxxxxxxxx 00000, Attention: Vice-President of Purchasing, and if to the Company, addressed to it
at 00000 Xxxxx Xxxx, Xxxxx, Xxxxxxxx 00000, Attention: Chief Financial Officer, or to such other
address or attention as shall be furnished in writing by the Company or the Holder. Any such notice
or other communication shall be deemed to have been given as of the date received.
(e) In the event of any conflict between this Warrant and the Agreement, the terms of this
Warrant shall control.
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IN WITNESS WHEREOF, the undersigned has caused this Warrant to be signed by a duly authorized
officer and this Warrant to be dated as of the date set forth above.
ROCKWELL MEDICAL TECHNOLOGIES, INC.
By:
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/s/ Xxx Xxxxxxx | |||
Its:
|
CEO | |||
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NOTICE OF EXERCISE
Rockwell Medical Technologies, Inc.
00000 Xxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
00000 Xxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
A Warrant was issued to the undersigned as of February 16, 2011 to purchase up to 100,000
shares of Rockwell Medical Technologies, Inc. common stock at the exercise price set forth in the
Warrant. The undersigned hereby elects to exercise the Warrant with respect to ____________
shares. Payment of the exercise price is being made by (check one):
| o | cash; | ||
| o | certified or cashier’s check delivered with this notice; | ||
| o | cashless exercise method described in Section 1(b) of the Warrant. |
The stock certificate for the shares acquired upon exercise should be issued to:
(name) |
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(address) |
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(Social Security No. or EIN)
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By: |
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Its: |
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Dated: |
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