EXHIBIT 4.10
EXCHANGE AGENT AGREEMENT
Date:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
In connection with a public exchange offer pursuant to a registration statement
(the "Registration Statement") on Form S-4 and Form SB-2, which was initially
filed on July 29, 2005 and which is to be declared effective sometime in the
future by the Securities and Exchange Commission (the "SEC"), of up to 3,625,000
warrants, Rockwell Medical Technologies, Inc. ("the Company") will offer to
exchange a new Common Share Purchase Warrant expiring January 26, 2006 with an
exercise price to be determined by the Company's Board of Directors prior to the
Effective Time (as defined below) (a "New Warrant") for each currently
outstanding Common Share Purchase Warrant expiring January 26, 2006 with an
exercise price of $4.50 (an "Old Warrant") that is properly tendered and
accepted by the Exchange Agent (the "Exchange Offer"). The "Expiration Date" for
the Exchange Offer shall be 5 p.m. Eastern Standard Time, on _____________,
2005, unless and until the Company shall have extended the period of time during
which the Exchange Offer is open, in which event the term "Expiration Date"
shall mean the latest time and date at which the Exchange Offer, as so extended
by the Company, shall expire. You will be notified of the date that the
Registration Statement is declared effective by the SEC (the "Effective Time")
by no later than the first business day following the Effective Time.
The Company has delivered or will deliver to you (i) a copy of the letter of
transmittal ("Letter of Transmittal") to be sent to holders of record as of the
latest practicable date prior to the Effective Time (the "Record Date") of the
Old Warrants (the "Record Date Warrant Holders"), (ii) copies of all other
documents or materials, if any, to be forwarded to the Record Date Warrant
Holders, (iii) a certified copy of resolutions adopted by the Board of Directors
of the Company authorizing the Exchange Offer, the appointment of the Exchange
Agent and the execution of this exchange agent agreement (this "Agreement"),
(iv) a list showing the names and addresses (as of the Record Date) of the
Record Date Warrant Holders and the number of Old Warrants held by each Old
Warrant Holder as of the Record Date including the certificate detail relating
thereto, and (v) a list of certificates (including certificate numbers)
representing the Old Warrants that have been or are, as of such date, lost,
stolen, destroyed or replaced or restricted as to transfer (noting the text of
the restrictive legends
applicable thereto) or with respect to which a stop transfer order has been
noted (such lists being herein referred to as the ("Lists").
As soon as practicable after the Effective Time, the Exchange Agent (as defined
below) will mail to each Record Date Warrant Holder and any holder of record
after the Record Date of the Old Warrants to whom mailing has been authorized in
writing to the Exchange Agent by the Company ("Subsequent Holders," and together
with the Record Date Warrant Holders, the "Old Warrant Holders") (a) a notice
advising such holder of the effectiveness of the Exchange Offer and the
applicable terms of the exchange effected thereby, (b) a Letter of Transmittal
with instructions and guidelines, (c) a self-addressed return envelope, (d) tax
certification and guidelines, (e) the Prospectus, and (f) any other material
deemed appropriate by the Company (collectively referred to as the "Old Warrant
Holder Mailing"). Notwithstanding the first sentence of this paragraph, the
Exchange Agent shall not mail the Old Warrant Holder Mailing to any Old Warrant
Holder to the extent that the Exchange Agent has received written notice from
the Company that the Old Shareholder Mailing is not permitted in the applicable
state. The Exchange Agent also will deliver to the Old Warrant Holders, when and
as directed by the Company, any supplements or amendments to the Prospectus or
any of the other Old Warrant Holder Mailing material.
This will confirm the appointment by the Company of American Stock Transfer &
Trust Company as the exchange agent ("Exchange Agent") and, in that capacity,
the authorization of the Exchange Agent to act as agent for the Company for the
purpose of receiving the Old Warrants and transmitting the New Warrants to the
Old Warrant Holders upon satisfaction of the conditions set forth herein. Your
duties, liabilities and rights as Exchange Agent are as set forth herein.
In carrying out your duties as Exchange Agent, you are to act in accordance with
the following:
1. Examination of Letters of Transmittal. You are to examine Letters of
Transmittal, certificates representing the Old Warrants and other
documents delivered or mailed to you by or for the Old Warrant Holders
to ascertain, to the extent reasonably determined by you, whether:
(a) the Letters of Transmittal appear to be duly executed and
properly completed in accordance with the instructions set
forth therein;
(b) the certificates for Old Warrants appear to be properly
surrendered and, if applicable, endorsed for transfer;
(c) the other documents, if any, used in exchange appear to be
duly executed any properly completed and in the proper form;
and
(d) the certificates for Old Warrants are free of restrictions on
transfer or stop orders.
In the event you ascertain that any Letter of Transmittal or other document has
been improperly completed or executed, that any of the certificates for Old
Warrants are not in proper form or some other irregularity exists, you shall
attempt to resolve promptly the irregularity and may use your best efforts to
contact the appropriate Old Warrant Holder by whatever means of communication
you deem most expedient to correct the irregularity and, upon consultation with
the Company, shall endeavor to take such other reasonable action as may be
necessary to cause such irregularity to be corrected, and the determination of
any questions referred to the Company or its counsel by you as to the validity,
form and eligibility, as well as the proper completion of execution of the
Letters of Transmittal and other documents, shall be final and binding, and you
may rely thereon as provided in Section 10 hereof. Any costs of contacting the
Old Warrant Holders for the purpose of correcting irregularities shall be
incurred for the account of the Company.
2. Exchange of Warrants. As soon as practicable after surrender to you of
the certificates for Old Warrants registered to a particular record
holder or holders and the return of a properly completed and signed
Letter of Transmittal relating thereto prior to the Expiration Date,
you shall provide written notice to the Company of such surrender and
return, and, after the Expiration Date and upon the Company's written
authorization, you will promptly cause to be issued and distributed to
the holder(s) in whose name such certificates were registered (or such
other person as shall have been specified pursuant to the terms hereof)
the New Warrants.
Until so surrendered, each certificate which immediately prior to the
Effective Time represented Old Warrants shall, at and after the
Effective Time, entitle the holder(s) thereof only to receive, upon
surrender of it and all other identically registered certificates, the
certificates representing the New Warrants.
If any certificates representing the New Warrants are to be issued in a
name other than that in which the certificate for the Old Warrants
surrendered in exchange therefor is registered, it shall be a condition
of the issuance or payment thereof that the certificate so surrendered
shall be properly endorsed and otherwise in proper form for transfer
and that the person requesting such exchange shall pay to you any
transfer or other taxes required, or shall establish to your
satisfaction that such tax has been paid or is not payable.
Certificates to be delivered by mail shall be forwarded by first class
mail under the Exchange Agent's blanket surety bond, which the Company
understands protects the Company and the Exchange Agent from loss or
liability arising by virtue of the non-receipt or non-delivery of such
certificates. It is understood that the market value of the securities
in any one shipment sent by first class mail will not be in excess of
$250,000.00. In the event the market value shall exceed $250,000.00,
the envelope shall be mailed by registered mail and shall be insured
separately for the replacement value of its contents at the time of
mailing.
3. Lost Stolen or Destroyed Certificates. In the event that any Old
Warrant Holder claims that any certificate representing Old Warrants is
lost, stolen or destroyed, the Exchange Agent shall mail to such Old
Warrant Holder an affidavit of loss and the requirements for an
indemnity bond. The Exchange Agent shall make the distribution of
certificates representing the New Warrants only upon receipt of a
properly completed affidavit of loss and the requirements for an
indemnity bond.
4. Reports. The Exchange Agent shall furnish, until otherwise notified,
monthly, or more frequently if requested by the Company, reports to the
Company showing:
(a) number of Old Warrants surrendered and number of New Warrants
issued in exchange therefor (previous, herewith and total);
and
(b) fractional warrants adjusted (previous, herewith and total).
5. IRS Filings. You shall arrange to comply with all requirements under
the tax laws of the United States, including those relating to missing
tax identification numbers, and shall file any appropriate reports with
the Internal Revenue Service ("IRS") (e.g., 1099, 1099B, etc.).
6. Copies of Documents. You shall take such action at the Company's
expense as may from time to time be reasonably requested by the Company
to furnish copies of the Letter of Transmittal and other documents
comprising the Old Warrant Holder Mailing with all subsequent
supplements or amendments to persons designated by the Company.
7. Receipt or Disposal. Letters of Transmittal and telegrams, telexes,
facsimile transmissions and other materials submitted to you by the Old
Warrant Holders shall be preserved in accordance with the terms of
applicable laws, but in any event at least three years from the date
received.
8. Maintenance of Records. You will keep and maintain complete and
accurate ledgers showing all warrants exchanged by you. You are
authorized to cooperate with and furnish information to any
organization or its legal representatives designated from time to time
by the Company in any manner reasonably requested by any of them in
connection with the Exchange Offer pursuant thereto.
9. Delivery of Surrendered Old Warrants. All certificates for Old Warrants
surrendered to you shall be retained by you as required by S.E.C.
regulations.
10. Exchange Agents Duties and Obligations. As Exchange Agent, you:
(a) will have no duties or obligations other than those specifically
set forth herein, or as may subsequently be agreed to in writing
by you and the Company;
(b) will be regarded as making no representations or warranties and
having no responsibilities regarding the validity, sufficiency,
value or genuineness of any certificates for Old Warrants
surrendered to you or the Old Warrants represented thereby; will
not be required or requested to make any representations as to the
validity or genuineness of any certificates for New Warrants or
New Warrants represented thereby; and will not be responsible in
any manner whatsoever for the correctness of the statements made
herein or in the Registration Statement or in any document
furnished to you by the Company;
(c) will not be obligated to institute or defend on the Company's
behalf any action, suit or legal proceeding in connection with the
Exchange Offer or take any other action which might in your
reasonable judgment involve, or result in, expense or liability to
you, unless the Company shall first furnish you an indemnity
reasonably satisfactory to you;
(d) may rely on, and shall be protected in acting upon, any
certificate, instrument, opinion, representation, notice letter,
telegram or other document delivered to you and believed by you to
be genuine and to have been signed by the proper party or parties;
(e) may rely on, and shall be protected in acting upon, written or
oral instructions given by any executive officer of, or any party
authorized by, the Company with respect to any matter relating to
your actions as Exchange Agent;
(f) may consult with counsel satisfactory to you (including counsel
for the Company), and the written advice or opinion of such
counsel shall be full and complete authorization and protection in
the respect of any
action taken, suffered or omitted by you hereunder in good faith
and in accordance with such advice or opinion of such counsel; and
(g) may retain an agent or agents of your choice to assist you in
performing your duties and obligations hereunder, at your cost and
without relieving you of any liability hereunder.
11. Termination of Exchange Agent's Duties and Obligations. This Agreement
shall terminate upon demand by the Company at which time all
undistributed certificates representing New Warrants shall be delivered
by the Exchange Agent to the Company. The provisions of sections 12 and
13 below shall survive the termination of this Agreement.
12. Indemnification of Exchange Agent. The Company hereby covenants and
agrees to reimburse, indemnify and hold you harmless from and against
any and all claims, actions, judgments, damages, losses, liabilities,
costs and transfer or other non-income taxes (including, without
limitation, reasonable attorneys fees and expenses) incurred or
suffered without any breach of this Agreement, negligence, bad faith or
willful misconduct on your part, (a) arising out of or incident to this
Agreement or the administration of your duties hereunder, (b) arising
out of or incident to your compliance with instructions set forth
herein or with any instructions delivered to you pursuant hereto, or
(c) as a result of defending yourself against any claim or liability
resulting from your actions as Exchange Agent, including any claim
against you by any tendering Old Warrant Holder, which covenant and
agreement shall survive the termination hereof. You hereby represent
that you will notify the Company by letter, or facsimile confirmed by
letter, of any receipt by you of a written assertion of a claim against
you, or any action commenced against you, within ten (10) days after
your receipt of written notice of such assertion or your having been
served with the summons or other first legal process giving information
as to the nature and basis of any such assertion. However, your failure
to so notify the Company shall not operate in any manner whatsoever to
relieve the Company from any liability which it may have on account of
this Section 12 if no prejudice occurs. At its election, the Company
may assume the conduct of your defense in any such action or claim, at
its sole cost and expense. In the event that the Company elects to
assume the defense of any such action or claim, the Company shall not
be liable for the fees and expenses of any counsel thereafter retained
by you.
13. Compensation and Expenses. For services rendered as Exchange Agent
hereunder, your fees are approved as set forth in the schedule attached
to this Agreement.
14. Notices. Except as otherwise provided herein, no notice, instruction or
other communication by one party shall be binding upon the other party
unless hand delivered or sent by certified mail, return receipt
requested. Notice to you shall be sent or delivered to your above-noted
address or such other addresses as you shall hereafter designate in
writing in accordance herewith. Notice to the Company shall be sent or
delivered to:
Rockwell Medical Technologies, Inc.
00000 Xxxxx Xx.
Xxxxx, XX 00000
Attn: President
with a copy to:
Xxxx X. Xxxxx, Esq.
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
15. Prior Agreements. Nothing herein contained shall amend, replace or
supersede any agreement between the Company and you to act as the
Company's transfer agent which agreement shall remain of full force and
effect.
16. Governing Law; Binding Upon Successors and Assigns. This Agreement
shall be constructed and enforced in accordance with the laws of the
state of New York, without regard to the principles thereof respecting
conflicts of laws, and shall inure to the benefit of, and the
obligations created hereby shall be binding upon, the successors and
assigns of the parties hereto.
Executed this ________ day of _______________, 2005
ROCKWELL MEDICAL TECHNOLOGIES, INC.
By: ________________________
Name: _____________________
Title: ______________________
Agreed To and Accepted:
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: __________________________
Name: ________________________
Title: _______________________
