ROCKWELL MEDICAL TECHNOLOGIES, INC. COMMON STOCK WARRANT
EXHIBIT 4.2
DATE: NOVEMBER 28, 2007
ROCKWELL MEDICAL TECHNOLOGIES, INC.
COMMON STOCK WARRANT
COMMON STOCK WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE. THIS WARRANT AND THE
SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED, PLEDGED OR
RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THIS WARRANT MAY
REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO
THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.
This certifies that XX Xxxxxx IR Services LLC (the “Holder”), its designees or
permitted assigns, at any time or from time to time during the period starting from 5:00 a.m.
(Eastern Time) on the one year anniversary of the date hereof (the “Initial Exercise Date”)
to and including 5:00 p.m. (Eastern Time) on the date that is the fifth (5th)
anniversary of the date hereof (the “Expiration Date”), for value received, is entitled to
purchase from ROCKWELL MEDICAL TECHNOLOGIES, INC., a Michigan corporation (the “Company”),
subject to the terms set forth below, 80,000 fully-paid and nonassessable shares (subject to
adjustment as provided herein) (the “Warrant Shares”) of the Company’s Common Stock, no par
value per share (the “Common Stock”). The per share exercise price (the “Exercise
Price”) per Warrant Share issuable pursuant to this Common Stock Warrant shall be equal to
$10.00 (subject to adjustment as provided herein), payable in accordance with Section 1 hereof.
This Warrant is issued subject to the following terms and conditions:
1. Exercise, Issuance of Certificates.
(a) Exercise. The Holder may exercise this Warrant at any time and from time to time during
the period from the Initial Exercise Date to the Expiration Date for all or any part of the Warrant
Shares (but not for a fraction of a share) that may be purchased hereunder, as that number may be
adjusted pursuant to Section 3 of this Warrant. The Company agrees that the Warrant Shares
purchased under this Warrant shall be and are deemed to be issued to the Holder hereof as the
record owner of such Warrant Shares as of the close of business on the date on which this Warrant
shall have been surrendered, properly endorsed, the completed and executed Form of Subscription
delivered, and payment made for such Warrant Shares (such date, a “Date of Exercise”).
Certificates for the Warrant Shares so purchased, together with any other securities or property to
which the Holder hereof is entitled upon such exercise,
shall be delivered to the Holder hereof by the Company at the Company’s expense as soon as
practicable after the rights represented by this Warrant have been so exercised. In case of a
purchase of less than all the Warrant Shares which may be purchased under this Warrant, the Company
shall cancel this Warrant
and execute and deliver to the Holder hereof within a reasonable time a
new Warrant or Warrants of like tenor for the balance of the Warrant Shares purchasable under the
Warrant surrendered upon such purchase. Each stock certificate so delivered shall be registered in
the name of such Holder and issued with a legend in substantially the form of the legend placed on
the front of this Warrant.
Notwithstanding anything set forth herein, this Warrant shall not be exercisable with respect
to the minimum number of Warrant Shares as will result in the Holder (together with its affiliates)
owning, holding or beneficially owning more than 9.99% of the outstanding Common Stock (the
“Ownership Limit”), and at any time, and from time to time, if the Holder (together with its
affiliates) owns, holds or beneficially owns a percentage less than the Ownership Limit, then this
Warrant shall thereafter become exercisable, first with respect to any Warrant Shares for which
this Warrant would have been exercisable but for the Ownership Limit and second, but in each case
again, only to the extent that, after giving effect to such exercisability, such exercisability
will not result in the Holder (together with its affiliates) owning, holding or beneficially owning
more than the Ownership Limit. The restrictions set forth in this paragraph do not pertain if,
excluding the shares for which this Warrant is then exercisable, the Holder (together with its
affiliates) owns, holds or beneficially owns outstanding Capital Stock in an amount greater than
the Ownership Limit. The restrictions set forth in this paragraph may be waived by the Holder upon
written notice to the Company.
(b) Other Provisions. The Company’s obligations to issue and deliver Warrant Shares in
accordance with the terms hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same. Nothing herein shall limit a Holder’s right to pursue
any other remedies available to it hereunder, at law or in equity including, without limitation, a
decree of specific performance and/or injunctive relief with respect to the Company’s failure to
timely deliver certificates representing shares of Common Stock upon exercise of the Warrant as
required pursuant to the terms hereof.
(c) Payment of Exercise Price. The Holder shall pay the applicable aggregate Exercise
Price in cash by delivering immediately available funds to the Company.
2. Shares to be Fully Paid; Reservation of Shares. The Company covenants and agrees
that all Warrant Shares will, upon issuance and payment of the applicable Exercise Price, be duly
authorized, validly issued, fully paid and nonassessable, and free of all preemptive rights, liens
and encumbrances, except for any restrictions on transfer provided for herein. The Company shall
at all times reserve and keep available out of its authorized and unissued Common Stock, solely for
the purpose of providing for the exercise of the rights to purchase all Warrant Shares granted
pursuant to this Warrant, such number of shares of Common Stock as shall, from time to time, be
sufficient therefor.
3. Adjustment of Exercise Price and Number of Shares. The Exercise Price and the
total number of Warrant Shares shall be subject to adjustment from time to time upon the occurrence
of certain events described in this Section 3.
(a) Subdivision or Combination of Stock. In the event the outstanding shares of the
Company’s Common Stock shall be increased by a stock dividend payable in Common Stock, stock split,
subdivision, or other similar transaction occurring after the date hereof into a greater number of
shares of Common Stock, the Exercise Price in effect immediately prior to such subdivision shall be
proportionately reduced and the number of Warrant Shares issuable hereunder proportionately
increased. Conversely, in the event the outstanding shares of the Company’s Common Stock shall be
decreased by reverse stock split, combination, consolidation, or other similar transaction occurring after
the date hereof into a lesser number of shares of Common Stock, the Exercise Price in effect
immediately prior to such
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combination shall be proportionately increased and the number of Warrant
Shares issuable hereunder proportionately decreased.
(b) Reclassification, Reorganization, Merger, Etc.. If any reclassification of the
capital stock of the Company or any reorganization, consolidation, merger, or any sale, lease,
license, exchange or other transfer (in one transaction or a series of related transactions) of all
or substantially all, of the business and/or assets of the Company (the “Reclassification
Events”) shall be effected in such a way that holders of Common Stock shall be entitled to
receive stock, securities, or other assets or property, then, as a condition of such
Reclassification Event, lawful and adequate provisions shall be made whereby the Holder hereof
shall thereafter have the right to purchase and receive in exchange for payment of the applicable
aggregate Purchase Price (in lieu of the shares of Common Stock of the Company immediately
theretofore purchasable and receivable upon the exercise of the rights represented hereby) such
shares of stock, securities, or other assets or property as may be issued or payable with respect
to or in exchange for a number of outstanding shares of such Common Stock equal to the number of
shares of such stock immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby. In any Reclassification Event, appropriate provision shall be made with
respect to the rights and interests of the Holder of this Warrant to the end that the provisions
hereof (including, without limitation, provisions for adjustments of the Exercise Price and of the
number of Warrant Shares), shall thereafter be applicable, as nearly as may be, in relation to any
shares of stock, securities, or assets thereafter deliverable upon the exercise hereof.
(c) Notice of Adjustment. Upon any adjustment of the Exercise Price or any increase
or decrease in the number of Warrant Shares, the Company shall give written notice thereof, by
first class mail postage prepaid, addressed to the registered Holder of this Warrant at the address
of such Holder as shown on the books of the Company. The notice shall be prepared and signed by
the Company’s Chief Financial Officer and shall state the Exercise Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares purchasable at such price
upon the exercise of this Warrant, setting forth in reasonable detail the method of calculation and
the facts upon which such calculation is based.
4. No Voting or Dividend Rights. Nothing contained in this Warrant shall be construed
as conferring upon the holder hereof the right to vote or to consent to receive notice as a
stockholder of the Company on any other matters or any rights whatsoever as a shareholder of the
Company. No dividends or interest shall be payable or accrued in respect of this Warrant or the
interest represented hereby or the shares purchasable hereunder until, and only to the extent that,
this Warrant shall have been exercised.
5. Compliance with Securities Act. The Holder of this Warrant, by acceptance hereof,
agrees that this Warrant is being acquired for its own account and not for any other person or
persons, for investment purposes and that it will not offer, sell, or otherwise dispose of this
Warrant except under circumstances which will not result in a violation of the Act or any
applicable state securities laws.
6. Limited Transferability. The Holder represents that by accepting this Warrant it
understands that this Warrant and any securities obtainable upon exercise of this Warrant have not
been registered for sale under Federal or state securities laws and are being offered and sold to
the Holder pursuant to one or more exemptions from the registration requirements of such securities
laws. In the absence of an effective registration of such securities or an exemption therefrom,
any certificates for such securities shall bear the legend set forth on the first page hereof. The
Holder understands that it must bear the economic risk of its investment in this Warrant and any
securities obtainable upon exercise of this Warrant for an indefinite period of time, as this
Warrant and such securities have not been registered
under Federal or state securities laws and therefore cannot be sold unless subsequently
registered under such laws, unless an exemption from such registration is available.
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7. Amendment, Waiver, etc. Except as expressly provided herein, neither this Warrant
nor any term hereof may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment, waiver, discharge or
termination is sought; provided, however, that any provisions hereof may be amended, waived,
discharged or terminated upon the written consent of the Company and the Majority of the Holders;
provided, that (x) any such amendment or waiver must apply to all of the warrants issued
pursuant to the Agreement; and (y) the number of Warrant Shares subject to this Warrant, the
Warrant Price and the Expiration Date may not be amended, and the right to exercise this Warrant
may not be altered or waived, without the written consent of the Holder hereof. For purposes
hereof, “Majority of the Holders” shall mean Holders of more than fifty percent (50%) of
the Warrant Shares then issuable upon exercise of then outstanding warrants of like tenor to this
Warrant issued by the Company in connection with the Agreement.
8. Notices. Any notice, request, or other document required or permitted to be given or
delivered to the Holder hereof or the Company shall be sent by postage prepaid first class mail,
overnight courier or telecopy, or delivered by hand to the party to whom such correspondence is
required or permitted to be given hereunder. The date of giving any notice shall be the date of its
actual receipt.
All correspondence to the Company shall be addressed as follows:
Rockwell
Medical Technologies, Inc.
00000 Xxxxx Xxxx, Xxxxxxxx 00000
Attn: Legal Department
Telecopy: 000-000-0000
00000 Xxxxx Xxxx, Xxxxxxxx 00000
Attn: Legal Department
Telecopy: 000-000-0000
With copies to:
Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxx
Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxx
All correspondence to the Holder shall be addressed as follows:
XX Xxxxxx IR Services LLC
000 Xxxxxxxxx Xxx.
Glen Ellyn, IL 60137
000 Xxxxxxxxx Xxx.
Glen Ellyn, IL 60137
9. Governing Law. This Warrant shall be construed and enforced in accordance with,
and the rights of the parties shall be governed by, the laws of the State of Michigan.
10. Lost or Stolen Warrant. Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction, or mutilation of this Warrant and, in the case of any such
loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to the Company, or
in the case of any such mutilation, upon surrender and cancellation of such Warrant, the Company,
at its expense, will make and deliver a new Warrant, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant.
11. Fractional Shares. No fractional shares shall be issued upon exercise of this
Warrant. The Company shall, in lieu of issuing any fractional share, pay the Holder entitled to
such fraction a sum in cash equal to such fraction (calculated to the nearest 1/100th of a share)
multiplied by the then effective Exercise Price on the date the Form of Subscription is received by
the Company.
12. Successors and Assigns. This Warrant and the rights evidenced hereby shall inure
to the benefit of and be binding upon the successors of the Company and the successors and assigns
of the Holder. The provisions of this Warrant are intended to be for the benefit of all Holders
from time to time of this Warrant, and shall be enforceable by any such Holder.
13. Severability of Provisions. In case any one or more of the provisions of this
Warrant shall be invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Warrant shall not in any way be affected or impaired thereby
and the parties will attempt in good faith to agree upon a valid and enforceable provision which
shall be a commercially reasonable substitute therefor, and upon so agreeing, shall incorporate
such substitute provision in this Warrant.
14. Registration Rights. The Holder is entitled to the benefit of certain
registration rights with respect to the shares of Common Stock issuable upon the exercise of this
Warrant as provided in the Registration Rights Agreement, dated as of the date hereof, among the
Company and the persons executing such agreement as Purchasers, and any subsequent Holder may be
entitled to such rights.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its president
and chief executive officer, thereunto duly authorized as of this 28th day of November, 2007.
| ROCKWELL MEDICAL TECHNOLOGIES, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
Signature Page—Common Stock Warrant
FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To: ROCKWELL MEDICAL TECHNOLOGIES, INC.
The undersigned, the holder of the attached Common Stock Warrant, hereby elects to exercise
the purchase right represented by such Warrant for, and to purchase thereunder,
shares of Common Stock of ROCKWELL MEDICAL
TECHNOLOGIES, INC. and such holder herewith makes payment of $ therefor.
The undersigned requests that certificates for such shares be issued in the name of, and
delivered to:
whose address is:
.
DATED:
| (Signature must conform in all respects to name of Xxxxxx as specified on the face of the Warrant) | ||||
| Name: | ||||
| Title: | ||||
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