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EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as
of _____________, 1997, by and between Rockwell Medical Technologies, Inc., a
Michigan corporation (the "Company"), and the person whose name appears on the
signature page attached hereto (individually a "Holder", and together with the
holders of other Units issued in the private placement Offering hereinafter
described, the "Holders").
WHEREAS, pursuant to a Confidential Private Offering Memorandum
dated May 7, 1997 (the "Confidential Memorandum") and a subscription agreement
annexed as an exhibit thereto (the "Subscription Agreement"), the Company is
Offering (the "Offering") a minimum of 5 units and a maximum of 25 units, each
unit (the "Unit") consisting of 20,000 shares of the Company's common stock, no
par value (the "Common Stock"), and 20,000 common stock purchase warrants (the
"Warrants").
WHEREAS, each Warrant entitles the registered holder thereof to
purchase one share of Common Stock, at a purchase price of $4.50 per share;
WHEREAS, each Warrant is exercisable for a period of three years
commencing one year from the later of: (i) the closing of the Offering, and
(ii) the effective date of the Company's anticipated registered initial public
offering, and shall be automatically exchanged for warrants offered in the
anticipated registered public offering if any warrants are offered in the
anticipated registered initial public offering;
WHEREAS, the Offering is exempt from the registration
requirements of the Securities Act of 1933, as amended (the "1933 Act");
WHEREAS, pursuant to the terms of, and in order to induce the
Holders to enter into the Subscription Agreement to purchase the Units, the
Company and the Holders have agreed to enter into this Agreement;
WHEREAS, it is intended by the Company and the Holders that this
Agreement shall become effective immediately upon the acquisition by the Holder
of the Unit(s);
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and in the Subscription Agreement, the Company
hereby agrees as follows:
1. Registration Rights.
(a) "Piggyback Registration". If the Company at any time
proposes to register any of its securities under the 1933 Act (other than in
connection with an employee benefit plan, a business combination, an exchange
offer, a dividend reinvestment plan, a merger or acquisition or pursuant to a
registration statement on Form X-0, Xxxx X-0 or any successor form), the
Company shall request that the underwriter or managing underwriter (if any) of
an
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underwritten offering, or if not an underwritten offering the Company shall,
include the Common Stock, the shares of Common Stock underlying the Warrants
and if public warrants are being offered, the Warrants (the "Warrant Shares")
(the Common Stock, Warrants and Warrant Shares collectively referred to herein
as, the "Registrable Securities") in such registration, it will give written
notice by U.S. Mail, at least thirty (30) days prior to the filing of each such
registration statement, to the undersigned of its intention to do so. If the
offering is underwritten and such underwriter or managing underwriter agrees to
include the Registrable Securities in the underwritten offering, or if not an
underwritten offering, the Company shall at such time give prompt written
notice to all Holders of its intention to effect such registration and of such
Holders' rights under such proposed registration, and upon the request of any
such Holder delivered to the Company within twenty (20) days after giving such
notice (which request shall specify the Registrable Securities intended to be
disposed of by such Holder and the intended method of disposition thereof), the
Company shall include such Registrable Securities held by such Holder requested
to be included in such registration; provided, however, that:
If, at any time after giving such written notice of the
Company's intention to register any of the Holders' Registrable Securities and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register or to delay the registration of its securities, at its sole election,
the Company may give written notice of such determination to each Holder and
thereupon shall be relieved of its obligation to register any Registrable
Securities issued or issuable in connection with such registration (but not
from its obligation to pay registration expenses in connection therewith or to
register the Registrable Securities in a subsequent registration) ; and in the
case of a determination to delay a registration shall thereupon be permitted to
delay registering any Registrable Securities for the same period as the delay
in respect of securities being registered for the Company's own account.
(b) Option to Include Registrable Securities in Offering. The
Holders, subject to the provisions of Section 1, shall have the option to
include their Registrable Securities in the Company's underwritten offering.
The Company shall not be required to include any of the Holders' Registrable
Securities in an underwritten offering of the Company's securities unless such
Holders accept the terms of the underwriting as agreed upon between the Company
and the underwriters selected by it (provided such terms are usual and
customary for selling stockholders) and the Holders agree to execute and/or
deliver such documents in connection with such registration as the Company or
the managing underwriter may reasonably request. Notwithstanding the
provisions of this Section 1, if the Company's securities so registered for
sale are to be distributed in an underwritten offering and the managing
underwriter shall advise the Company in writing that, in its opinion, the
amount of securities to be offered should be limited in order to assure a
successful offering, the amount of Registrable Shares to be included in such
registration statement shall be so limited and
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shall be allocated among the persons selling such securities in the following
order of priority: (i) first to be registered will be the securities the
Company proposes to sell, (ii) next to the registered will be the Registrable
Shares and any other shares of Common Stock subject to similar piggyback
registration rights granted by the Company in proportion, as nearly as
practicable, to the number of shares of Common Stock owned by each holder of
such shares of Common Stock.
(c) Cooperation with Company. The Holder will cooperate with
the Company in all respects in connection with this Agreement, including,
timely supplying all information reasonably requested by the Company and
executing and returning all documents reasonably requested in connection with
the registration and sale of the Registrable Securities.
2. Registration Procedures. If and whenever the Company is
required by any of the provisions of this Agreement to use its best efforts to
effect the registration of any of the Registrable Securities under the 1933
Act, the Company shall (except as otherwise provided in this Agreement), as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement and shall use its best
efforts to cause such registration statement to become effective and remain
effective until all the Registrable Securities are sold or become capable of
being publicly sold without registration under the 1933 Act.
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for at least fourteen months and to comply with the provisions of the
1933 Act with respect to the sale or other disposition of all securities
covered by such registration statement whenever the Holder or Holders of such
securities shall desire to sell or otherwise dispose of the same (including
prospectus supplements with respect to the sales of securities or the exercise
of Warrants from time to time in connection with a registration statement
pursuant to Rule 415 of the Commission);
(c) furnish to the Holder such numbers of copies of a summary
prospectus or other prospectus, including a preliminary prospectus or any
amendment or supplement to any prospectus, in conformity with the requirements
of the 1933 Act, and such other documents, as the Holder may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Securities owned by the Holder;
(d) use its best efforts to register and qualify the
Registrable Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as the Underwriter requests
shall reasonably request, and do any and all other
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acts and things which may be necessary or advisable to enable such Holder to
consummate the public sale or other disposition in such jurisdictions of the
Registrable Securities owned by such Holder, except that the Company shall not
for any such purpose be required to qualify to do business as a foreign
corporation in any Jurisdiction wherein it is not so qualified or to file
therein any general consent to service of process or subject itself to taxation
in any such jurisdiction;
(e) use its best efforts to list such securities on any
securities exchange on which any securities of the Company is then listed, if
the listing of such securities is then permitted under the rules of such
exchange;
(f) enter into and perform its obligations under an
underwriting agreement, if the offering is an underwritten offering, in usual
and customary form, with the managing underwriter or underwriters of such
underwritten offering;
(g) notify the Holder of Registrable Securities covered by such
registration statement, at any rime when a prospectus relating thereto covered
by such registration statement is required to be delivered under the 1933 Act,
of the happening of any event of which it has knowledge 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; and
(h) take such other actions as shall be reasonably requested by
any Holder to facilitate the registration and sale of the Registrable
Securities; provided, however, that the Company shall not be obligated to take
any actions not specifically required elsewhere herein which in the aggregate
would cost in excess of $5,000.
3. Restrictions on Transfer of Registrable Securities. The
Holder agrees that he will not sell or transfer any of the Registrable
Securities for a period of thirteen (13) months from the effective date (the
"Effective Date") of the registration statement pursuant to which its
Registrable Securities have been registered in an offering without the prior
written consent of the Placement Agent or the managing underwriter of an
initial public offering of the Company's securities.
4. Expenses. All expenses incurred in any registration of the
Holder's Registrable Securities under this Agreement shall be paid by the
Company, including, without limitation, printing expenses, fees and
disbursements of counsel for the Company, expenses of any audits to which the
Company shall agree or which shall be necessary to comply with governmental
requirements in connection with any such registration, all registration and
filing fees for the Holders' Registrable Securities under federal and State
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securities laws, and expenses of complying with the securities or blue sky laws
of any jurisdictions pursuant to Section 2 (d) ; provided, however, the Company
shall not be liable for (a) any discounts or commissions to any underwriter;
(b) any stock transfer taxes incurred with respect to Registrable Securities
sold in the Offering or (c) the fees and expenses of counsel for any Holder,
provided that the Company will pay the costs and expenses of Company counsel
when the Company's counsel is representing any or all selling security holders.
5. Indemnification. In the event any Registrable Securities
are included in a registration statement pursuant to this Agreement:
(a) Company Indemnity. Without limitation of any other
indemnity provided to any Holder, either in connection with the Offering or
otherwise, to the extent permitted by law, the Company shall indemnify and hold
harmless each Holder, the affiliates, officers, directors and partners of each
Holder, any underwriter (as defined in the 0000 Xxx) for such Holder, and each
person, if any, who controls such Holder or underwriter (within the meaning of
the 1933 Act or the Securities Exchange Act of 1934 (the "Exchange Act") ,
against any losses, claims, damages or liabilities (joint or several) to which
they may become subject under the 1933 Act, the Exchange Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statements including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, or any
blue sky filings made in any jurisdiction, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, (iii) any violation or alleged violation
by the Company of the 1933 Act, the Exchange Act, or any state securities law
or any rule or regulation promulgated under the 1933 Act, the Exchange Act or
any state securities law, (iv) the Company will not be liable in any such case
to the extent that any such loss, claim, damage, expense or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by, or on behalf of, the
undersigned or any such Underwriter specifically for use therein, and (v) such
indemnity shall not inure to the benefit of the undersigned or such Underwriter
(or such controlling person or director of the undersigned or such Underwriter)
if any such loss, claim, damage, expense, or liability arises out of or is
based upon (A) the undersigneds or the Underwriter's failure to deliver timely
a copy of the final prospectus (or the final prospectus as then amended,
revised or supplemented), or (B) any such untrue statement or omission of a
material fact that was corrected in the final prospectus (or the most recent
amendment, revision or supplement thereto) and the undersigned or the
Underwriter failed to deliver it timely; provided further, however, that the
Company shall not be relieved of any
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responsibility under preceding clause (v) to the undersigned or Underwriter if
the Company did not on a timely basis provide to the undersigned (in the case
of a non-underwritten distribution) or to the Underwriter a sufficient number
of copies of the prospectus and in each case, the Company shall reimburse the
Holder, affiliate, officer or director or partner, underwriter or controlling
person for any legal or other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company shall not be liable to any Holder in any
such case for any such loss, claim, damage, liability or action to the extent
that it arises out of or is based upon a Violation which occurs in reliance
upon and in conformity with written information furnished expressly for use in
connection with such registration by the Holder or any other officer, director
or controlling person thereof.
(b) Holder Indemnity. The Holder shall indemnify and hold
harmless the Company, its officers and directors, any underwriter (as defined
in the 0000 Xxx) of such registration statement and each person, if any, who
controls the Company or such underwriter (within the meaning of the 1933 Act or
the Exchange Act) , against any losses, claims, damages, or liabilities (joint
or several) to which they may become subject under the 1933 Act, the Exchange
Act or any state securities law, and the Holder shall reimburse the Company,
officer or director, underwriter or controlling person for any legal or other
expenses incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; insofar as such losses, claims,
damages or liabilities (or actions and respect thereof) arise out of or are
based upon any Violation; provided, however, that the Holder shall not be
liable to the Company in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
the Company or any other officer, director or controlling person thereof.
(c) Notice; Right to Defend. Promptly after receipt by an
indemnified party under this Section 5 of notice of the commencement of any
action (including any governmental action), such indemnified party shall, if a
claim in respect thereof is to be made against any indemnifying party under
this Section 5, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in and if the indemnifying party agrees in writing that it will be
responsible for any costs, expenses, judgments, damages and losses incurred by
the indemnified party with respect to such claim, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel to the parties; provided, however, that an indemnified party shall have
the right to retain its own counsel, with the fees and expenses to be paid by
the indemnifying party, if the indemnified party reasonably believes that
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other
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party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall relieve such indemnifying party of any
liability to the indemnified party under this Agreement only if and to the
extent that such failure is prejudicial to its ability to defend such action,
and the omission so to deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this Agreement.
(d) Contribution. If the indemnification provided for in this
Agreement is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the
other hand in connection with the statements or omissions which resulted in
such loss, liability, claim, damage or expense as well as any other relevant
equitable considerations. The relevant fault of the indemnifying party and the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties, relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Notwithstanding the foregoing, the amount the
Holder shall be obligated to contribute pursuant to the Agreement shall be
limited to an amount equal to the proceeds to the Holder of the Registrable
Securities sold pursuant to the registration statement which gives rise to such
obligation to contribute (less the aggregate amount of any damages which the
Holder has otherwise been required to pay in respect of such loss, claim,
damage, liability or action or any substantially similar loss, claim, damage,
liability or action arising from the sale of such Registrable Securities).
(e) Survival of Indemnity. The indemnification provided by
this Agreement shall be a continuing right to indemnification and shall survive
the registration and sale of any Registrable Securities by any person entitled
to indemnification hereunder and the expiration or termination of this
Agreement.
6. Assignment of Registration Rights. The rights of the Holder
under this Agreement, including the rights to cause the Company to register
Registrable Securities may not be assigned without the written prior consent of
the Company.
7. Remedies.
Remedies Upon Default or Delay. The Company acknowledges the
breach of
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any part of this Agreement may cause irreparable harm to the Holder and that
monetary damages alone may be inadequate. The Company therefore agrees that
the Holder shall be entitled to injunctive relief or such other applicable
remedy as a court of competent jurisdiction may provide. Nothing contained
herein will be construed to limit a Holder's right to any remedies at law,
including recovery of damages for breach of any part of this Agreement.
8. Notices.
(a) All communications under this Agreement shall be in writing
and shall be mailed by first class mail, postage prepaid, or telegraphed or
telexed with confirmation of receipt or delivered by hand or by overnight
delivery service,
i. If to the Company, at:
Rockwell Medical Technologies, Inc.
00000 Xxxxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
or at such other address as it may have furnished in writing to the Holder of
Registrable Securities at the time outstanding, or
ii. if to the Holder of any Registrable Securities, to the
address of such Holder as it appears in the stock ledger of the Company.
(b) Any notice so addressed, when mailed by registered or
certified mail shall be deemed to be given three days after so mailed, when
telegraphed or telexed shall be deemed to be given when transmitted, or when
delivered by hand or overnight shall be deemed to be given when delivered.
9. Successors and Assigns. Except as otherwise expressly
provided herein, this Agreement shall inure to the benefit of and be binding
upon the successors and permitted assigns of the Company and the Holder.
10. Amendment and Waiver. This Agreement may be amended, and
the observance of any term of this Agreement may be waived, but only with the
written consent of the Company and the Holder; provided, however, that no such
amendment or waiver shall take away any registration right of the Holder of
Registrable Securities or reduce the amount of reimbursable costs to the Holder
of Registrable Securities in connection with any
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registration hereunder without the consent of the Holder. No delay on the part
of any party in the exercise of any right, power or remedy shall operate as a
waiver thereof, nor shall any single or partial exercise by any party of any
right, power or remedy preclude any other or further exercise thereof, or the
exercise of any other right, power or remedy.
11. Counterparts. One or more counterparts of this Agreement
may be signed by the parties, each of which shall be an original but all of
which together shall constitute one and the same instrument.
12. Governing Law. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of Michigan,
without giving effect to conflicts of law principles.
14. Invalidity of Provisions. If any provision of this
Agreement is or becomes invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected thereby.
15. Headings. The headings in this Agreement are for
convenience of reference only and shall not be deemed to alter or affect the
meaning or interpretation of any provisions hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first set forth above.
ROCKWELL MEDICAL TECHNOLOGIES, INC.
______________________________
Signature of Holder
BY:_________________________________ ______________________________
Xxxxxx Xxxxxxx Print Name of Holder
President and Chief Executive
Officer
______________________________
______________________________
Print Address of Holder
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