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EXHIBIT 4.2
ROCKWELL MEDICAL TECHNOLOGIES, INC.
AND
XXXXX XXXX & CO., INC.
UNDERWRITERS'
WARRANT AGREEMENT
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UNDERWRITERS' WARRANT AGREEMENT dated as of ______________, 1998 by
and between ROCKWELL MEDICAL TECHNOLOGIES, INC. (the "Company") and XXXXX XXXX &
CO., INC. ("Xxxxx Xxxx" or the "Representative"), as the Representative of the
underwriting group. The underwriting group is referred to collectively herein as
the "Underwriters.
WITNESSETH:
WHEREAS, the Company proposes to issue to the Underwriters warrants
(the "Underwriters' Warrants") to purchase up to 180,000 shares of the
Company's common stock, no par value per share (the "Common Stock"), and/or up
to 270,000 Redeemable Common Stock Purchase Warrants (the "Redeemable Warrants")
each exercisable to purchase one share of Common Stock.
WHEREAS, the Underwriters have agreed, pursuant to the underwriting
agreement (the "Underwriting Agreement") dated _____________, 1998, by and
between the Underwriters and the Company, to act as the underwriters in
connection with the Company's proposed initial public offering (the "Initial
Public Offering") of 1,800,000 shares of Common Stock and 2,700,000 Redeemable
Warrants (the "Offering Securities"), such Offering Securities being identical
to the securities issuable upon exercise of the Underwriters' Warrants (except
that the exercise price of the Redeemable Warrants underlying the Underwriter's
Warrant shall be $7.43 per share) (the "Securities"); and
WHEREAS, the Underwriters' Warrants to be issued pursuant to this
Agreement will be issued on the First Closing Date (as such term is defined in
the Underwriting Agreement)
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by the Company to the Underwriters in consideration for, and as part of, the
Underwriters' compensation in connection with the Underwriters acting as the
underwriters pursuant to the Underwriting Agreement;
NOW, THEREFORE, in consideration of the promises, the payment by the
Underwriters to the Company of Ten Dollars ($10.00), the agreements herein set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Grant. The Holder (as defined in Section 3 below) is hereby
granted the right to purchase, at any time from ____________, 1999 until 5:00
p.m., New York time, on __________, 2003, an aggregate of up to 180,000 shares
of Common Stock and/or 270,000 Redeemable Warrants, at an initial purchase price
(subject to adjustment as provided in Section 8 hereof) of $6.60 per share of
Common Stock and $.165 per Redeemable Warrant (165% of the Initial Public
Offering price per Offering Security), subject to the terms and conditions of
this Agreement. The Securities issuable upon exercise of the Underwriters'
Warrants are sometimes referred to herein as the "Underwriters' Securities."
2. Warrant Certificates. The warrant certificate (the "Underwriters'
Warrant Certificate") to be delivered pursuant to this Agreement shall be in the
form set forth in Exhibit A attached hereto and made a part hereof, with such
appropriate insertions, omissions, substitutions, and other variations as
required or permitted by this Agreement.
3. Exercise of Underwriters' Warrants. The Underwriters' Warrants
are exercisable during the term set forth in Section 1 hereof payable by
certified or cashier's check or money order in lawful money of the United
States. Upon surrender of an Underwriter's
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Warrant Certificate with the annexed Form of Election to Purchase duly executed,
together with payment of the Purchase Price (as defined in Section 6 hereof) for
the Underwriter's Securities (and such other amounts, if any, arising pursuant
to Section 4 hereof) at the Company's principal office in Michigan located at
00000 Xxxxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxxx 00000, the registered holder of an
Underwriters' Warrant Certificate ("Holder" or "Holders") shall be entitled to
receive a certificate or certificates for the Underwriters' Securities so
purchased. The purchase rights represented by each Underwriters' Warrant
Certificate are exercisable at the option of the Holder or Holders thereof, in
whole or in part as to Underwriters' Securities. The Underwriters' Warrants may
be exercised to purchase all or any part of the Underwriters' Securities
represented thereby. In the case of the purchase of less than all the
Underwriters' Securities purchasable on the exercise of the Underwriters'
Warrants represented by an Underwriters' Warrant Certificate, the Company shall
cancel the Underwriters' Warrant Certificate represented thereby upon the
surrender thereof and shall execute and deliver a new Underwriters' Warrant
Certificate of like tenor for the balance of the Underwriters' Securities not so
purchased.
4. Issuance of Certificates. Upon the exercise of the Underwriters'
Warrants and payment of the Purchase Price therefor, the issuance of
certificates representing the Underwriters Securities or other securities,
properties or rights underlying such Underwriters' Warrants, shall be made
forthwith (and in any event within five (5) business days thereafter) without
further charge to the Holder thereof, and such certificates shall (subject to
the provisions of Sections 5 and 7 hereof) be issued in the name of, or in such
names as may be directed by, the Holder thereof, provided, however, that the
Company shall not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any such
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certificates in a name other than that of the Holder, and the Company shall not
be required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid. The Underwriters' Warrant Certificates and the
certificates representing the Underwriters Securities or other securities,
property or rights (if such property or rights are represented by certificates)
shall be executed on behalf of the Company by the manual or facsimile signature
of the then present Chairman or Vice Chairman of the Board of Directors or
President or Vice President of the Company, attested to by the manual or
facsimile signature of the then present Secretary or Assistant Secretary or
Treasurer or Assistant Treasurer of the Company. Underwriters' Warrant
Certificates shall be dated the date of issuance thereof by the Company upon
initial issuance, transfer or exchange.
5. Restriction On Transfer of Underwriters' Warrants. The Holder of
an Underwriters' Warrant Certificate (and its Permitted Transferee, as defined
below), by its acceptance thereof, covenants and agrees that the Underwriters'
Warrants are being acquired as an investment and not with a view to the
distribution thereof; that the Underwriters' Warrants may be sold, transferred,
assigned, hypothecated or otherwise disposed of, in whole or in part, to any
person (a "Permitted Transferee"), provided such transfer, assignment,
hypothecation or other disposition is made in accordance with the provisions of
the Securities Act of 1933, as amended (the "Act"); and provided, further, that
until ____________, 1999 (one year following the effective date of the Initial
Public Offering), only officers and partners of the Underwriters, or any Initial
Public Offering selling group member and their respective officers and partners,
shall be Permitted Transferees.
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6. Purchase Price.
(a) Initial and Adjusted Purchase Price. Except as otherwise
provided in Section 8 hereof, the initial purchase price of the Underwriters'
Securities shall be $6.60 per share of Common Stock and $.165 per Redeemable
Warrant. The adjusted purchase price shall be the price which shall result from
time to time from any and all adjustments of the initial purchase price in
accordance with the provisions of Section 8 hereof.
(b) Purchase Price. The term "Purchase Price" herein shall mean
the initial purchase price or the adjusted purchase price, depending upon the
context.
7. Registration Rights.
(a) Registration Under the Securities Act of 1933. The
Underwriters' Warrants have not been registered under the Act. The Underwriters'
Warrant Certificates shall bear the following legend:
The securities represented by this certificate have
not been registered under the Securities Act of 1933,
as amended (the "Act"), and may not be offered for
sale or sold except pursuant to (i) an effective
registration statement under the Act, or (ii) an
opinion of counsel, if such opinion and counsel shall
be reasonably satisfactory to counsel to the issuer,
that an exemption from registration under the Act is
available.
(b) Demand Registration. (1) At any time commencing on the first
anniversary of and expiring on the fifth anniversary of the effective date of
the Company's Registration Statement relating to the Initial Public Offering
(the "Effective Date"), the Holders of a Majority (as hereinafter defined) in
interest of the Underwriters' Securities (assuming the exercise of all of the
Underwriters' Warrants) shall have the right, exercisable by written notice
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to the Company, to have the Company use its best efforts to prepare and file
with the U.S. Securities and Exchange Commission (the "Commission"), solely on
one (1) occasion, a registration statement on Form SB-2 (or other appropriate
form), and such other documents, including a prospectus, as may be necessary in
the opinion of both counsel for the Company and counsel for the Holders, in
order to comply with the provisions of the Act, so as to permit a public
offering and sale, for a period of nine (9) months, of the Underwriters'
Securities by such Holders and any other Holders of the Underwriters' Warrants
and/or the Underwriters' Securities who notify the Company within fifteen (15)
business days after receipt of the notice described in Section 7(b)(2). The
Holders of the Underwriters' Warrants may demand registration without exercising
the Underwriters' Warrants, and are never required to exercise same.
(2) The Company covenants and agrees to give written notice
of any registration request under this Section 7(b) by any Holders to all other
registered Holders of the Underwriters' Warrants and the Underwriters'
Securities within ten (10) business days from the date of the receipt of any
such registration request.
(3) For purposes of this Agreement, the term "Majority" in
reference to the Holders of the Underwriters' Securities, shall mean in excess
of fifty percent (50%) of the then outstanding Underwriters' Warrants and/or
Underwriters' Securities that (i) are not held by the Company, an affiliate,
officer, employee or agent thereof or any of their respective affiliates,
members of their family, persons acting as nominees or in conjunction therewith,
or (ii) have not been resold to the public pursuant to a registration statement
filed with the Commission under the Act.
(c) Piggyback Registration. (1) If, at any time within the
period
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commencing on the first anniversary and expiring on the fifth anniversary of the
Effective Date, the Company should file a registration statement with the
Commission under the Act (other than in connection with a merger or other
business combination transaction or pursuant to Form S-8) it will give written
notice at least thirty (30) calendar days prior to the filing of each such
registration statement to the Underwriters and to all other Holders of the
Underwriters' Warrants and/or the Underwriters' Securities of its intention to
do so. If either of the Underwriters or other Holders of the Underwriters'
Warrants and/or the Underwriters' Securities notify the Company within twenty
(20) calendar days after receipt of any such notice of its or their desire to
include any Underwriters' Securities in such proposed registration statement,
the Company shall afford the Underwriters and such Holders of the Underwriters'
Warrants and/or Underwriters' Securities the opportunity to have any such
Underwriters' Securities registered under such registration statement.
Notwithstanding the provisions of this Section 7(c)(1) and the provisions of
Section 7(d), the Company shall have the right at any time after it shall have
given written notice pursuant to this Section 7(c)(1) (irrespective of whether a
written request for inclusion of any such securities shall have been made) to
elect not to file any such proposed registration statement, or to withdraw the
same after the filing but prior to the effective date thereof.
(2) If the underwriter of an offering to which the above
piggyback rights apply objects to such rights, such objection shall preclude
such inclusion. However, in such event, the Company will use its best efforts,
within nine (9) months of completion of such subsequent underwriting, file at
the expense of the Company, a registration statement so as to permit a public
offering and sale, for a period of nine (9) months, of such excluded
Underwriters' Securities, which shall be in addition to any registration
statement required
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to be filed pursuant to Section 7(b).
(d) Covenants of the Company With Respect to Registration. In
connection with any registrations under Sections 7(b) and 7(c) hereof, the
Company covenants and agrees as follows:
(1) The Company shall use its best efforts to file a
registration statement within forty-five (45) calendar days of receipt of any
demand therefor pursuant to Section 7(b); provided, however, that the Company
shall not be required to produce audited or unaudited financial statements for
any period prior to the date such financial statements are required to be filed
in a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall
use its best efforts to have any registration statement declared effective at
the earliest possible time, and shall furnish each Holder desiring to sell
Underwriters' Securities such number of prospectuses as shall reasonably be
requested.
(2) The Company shall pay all costs (excluding fees and
expenses of Holders' counsel and any underwriting discounts or selling fees,
expenses or commissions), fees and expenses in connection with the first
registration statement filed pursuant to Sections 7(b) and 7(c) hereof
including, without limitation, the Company's legal and accounting fees, printing
expenses, blue sky fees and expenses.
(3) The Company will use its best efforts to qualify or
register the Underwriters' Securities included in a registration statement for
offering and sale under the securities or blue sky laws of such states as
reasonably are requested by the Holders, provided that the Company shall not be
obligated to execute or file any general consent to service of process or to
qualify as a foreign corporation to do business under the laws of any such
jurisdiction.
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(4) The Company shall indemnify the Holders of the
Underwriters' Securities to be sold pursuant to any registration statement and
each person, if any, who controls such Holders within the meaning of Section 15
of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), against all loss, claim, damage, expense or liability
(including all expenses reasonably incurred in investigating, preparing or
defending against any claim whatsoever) to which any of them may become subject
under the Act, the Exchange Act or otherwise, arising from such registration
statement, but only to the same extent and with the same effect as the
provisions pursuant to which the Company has agreed to indemnify the
Underwriters contained in Section 8 of the Underwriting Agreement.
(5) The Holders of the Underwriters' Securities to be sold
pursuant to a registration statement, and their successors and assigns, shall
indemnify the Company, its officers, directors, attorneys, representatives and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage
or expense or liability to which they may become subject under the Act, the
Exchange Act or otherwise, arising from information furnished by or on behalf of
such Holders, or their successors or assigns, for specific inclusion in such
registration statement to the same extent and with the same effect as the
provisions contained in Section 8 of the Underwriting Agreement pursuant to
which the Underwriters have agreed to indemnify the Company.
(6) Nothing contained in this Agreement shall be construed
as requiring the Holders to exercise their Underwriters' Warrants prior to the
initial filing of any registration statement or the effectiveness thereof.
(7) The Company shall not be entitled to include any
securities
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other than the Underwriters' Securities in any registration statement filed
pursuant to Section 7(b) hereof without the prior written consent, which consent
shall not be unreasonably withheld, of the Holders of the Underwriters' Warrants
and Underwriters' Securities representing a Majority of such securities
(assuming exercise of all of the Underwriters' Warrants).
(8) The Company shall furnish to a designated
representative of the Holders participating in the offering and to each
underwriter, if any, a signed counterpart, addressed to the Company or the
underwriter of (i) an opinion of counsel to the Company, dated the effective
date of such registration statement (and if such registration includes an
underwritten public offering, an opinion dated the date of the closing under the
underwriting agreement), and (ii) if such registration includes an underwritten
public offering a copy of the "cold comfort" letter dated the effective date of
such registration statement signed by each independent public accountant who has
issued a report on the Company's financial statements included in such
registration statement, in each case covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) and, in the case of such accountants' letters with respect to events
subsequent to the date of such financial statements, as are duly covered in
opinions of issuer's counsel and in accountants' letters, with respect to
customary events subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in accountants' letters
delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the
effective date of the registration statement, and in any event within 15 months
thereafter, make "generally available to its security holders" (within the
meaning of Rule 158 under the Act) an earnings
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statement (which need not be audited) complying with Section 1 (a) of the Act
and covering a period of at least 12 consecutive months beginning after the
effective date of the registration statement.
(10) The Company shall deliver promptly to each Holder
participating in the offering requesting the correspondence described below and
any managing underwriter copies of all correspondence between the Commission and
the Company, its counsel or auditors with respect to the registration statement
and permit each Holder and underwriter to do such investigation, upon reasonable
advance notice, with respect to information contained in or omitted from the
registration statement as it deems reasonably necessary to comply with
applicable securities laws or rules of the National Association of Securities
Dealers, Inc. ("NASD"). Such investigation shall include access to books,
records and properties and opportunities to discuss the business of the Company
with its officers and independent auditors, all to such reasonable extent and at
such reasonable times and as often as any such Holder shall reasonably request.
(11) The Company shall enter into an underwriting agreement
with the managing underwriter selected for such underwriting by Holders holding
a Majority of the Underwriters' Securities requested to be included in such
underwriting, provided, however that (i) such managing underwriter shall be
reasonably acceptable to the Company, except that in connection with an offering
for which the Holders have piggyback rights, the Company shall have the sole
right to select the managing underwriter or underwriters, and (ii) the Holders
shall be responsible for any selling fees or commissions in connection with such
underwriting. Such underwriting agreement shall be satisfactory in form and
substance to the Company, a Majority
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of such Holders (in respect of a registration under Section 7(b) only) and such
managing underwriter, and shall contain such representations, warranties and
covenants by the Company and such other terms as are customarily contained in
agreements of that type used by the managing underwriter. The Holders shall be
parties to any underwriting agreement relating to an underwritten sale of their
Underwriters' Securities and may, at their option, require that any or all the
representations, warranties and covenants of the Company to or for the benefit
of such underwriters shall also be made to and for the benefit of such Holders.
Such Holders shall not be required to make any representations or warranties to
or agreements with the Company or the underwriters except as they may relate to
such Holders and their intended methods of distribution.
e. Further Registrations. The Company will cooperate with the
Holders of the Underwriters' Warrants and Underwriters' Securities in preparing
and signing any registration statement, in addition to the registration
statements discussed above, required in order to sell or transfer the
Underwriters' Securities and will supply all information required therefor, but
all of such additional registration statement expenses including legal and
accounting fees will be prorated between the Company and the Holders of the
Underwriters' Warrants and Underwriters' Securities according to the aggregate
sales price of the securities being issued, and if the Company is not issuing
any securities pursuant to such registration statement, such expenses will be
borne entirely by the Holders of the Underwriters' Warrants and the
Underwriters' Securities. The provisions of Section 7(d) other than subsection
(2) shall apply to any such registration statement.
8. Adjustments to Purchase Price and Number of Securities.
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(a) Price Computation of Adjusted Purchase. Except as
hereinafter provided, in case the Company shall at any time after the date
hereof issue or sell any shares of Common Stock (other than the issuances
referred to in Section 8(g) hereof), including shares held in the Company's
treasury, for a consideration per share less than the lesser of the Purchase
Price in effect immediately prior to the issuance or sale of such shares or the
"Market Price" (as defined in Section 8(a)(6) hereof) per share of Common Stock
on the date immediately prior to the issuance or sale of such shares, or without
consideration, then forthwith upon any such issuance or sale, the Purchase Price
shall (until another such issuance or sale) be reduced to the price (calculated
to the nearest full cent) determined by dividing (1) the product of (a) the
Purchase Price in effect immediately before such issuance or sale and (b) the
sum of (i) the total number of shares of Common Stock outstanding immediately
prior to such issuance or sale, and (ii) the number of shares determined by
dividing (A) the aggregate consideration, if any, received by the Company upon
such sale or issuance, by (B) the lesser of (x) the Market Price, and (y) the
Purchase Price, in effect immediately prior to such issuance or sale; by (2) the
total number of shares of Common Stock outstanding immediately after such
issuance or sale provided, however, that in no event shall the Purchase Price be
adjusted pursuant to this computation to an amount in excess of the Purchase
Price in effect immediately prior to such computation, except in the case of a
combination of outstanding shares of Common Stock, as provided by Section 8(c)
hereof.
For the purposes of this Section 8, the term "Purchase Price" shall
mean the Purchase Price of the Underwriters' Securities set forth in Section 6
hereof, as adjusted from time to time pursuant to the provisions of this Section
8.
For the purposes of any computation to be made in accordance with this
Section
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8(a), the following provisions shall be applicable:
(1) In case of the issuance or sale of shares of Common
Stock for a consideration part or all of which shall be cash, the amount of the
cash consideration therefor shall be deemed to be the amount of cash received by
the Company for such shares (or, if shares of Common Stock are offered by the
Company for subscription, the subscription price), before deducting therefrom
any compensation paid or discount allowed in the sale or purchase thereof by
underwriters or dealers or others performing similar services, or any expenses
incurred in connection therewith.
(2) In case of the issuance or sale (otherwise than as a
dividend or other distribution on any stock of the Company) of shares of Common
Stock for a consideration part or all of which shall be other than cash, the
amount of the consideration therefor other than cash shall be deemed to be the
value of such consideration as determined in good faith by the Board of
Directors of the Company.
(3) Shares of Common Stock issuable by way of dividend or
other distribution on any stock of the Company shall be deemed to have been
issued immediately after the opening of business on the day following the record
date for the determination of stockholders entitled to receive such dividend or
other distribution and shall be deemed to have been issued without
consideration.
(4) The reclassification of securities of the Company other
than shares of Common Stock into securities including shares of Common Stock
shall be deemed to involve the issuance of such shares of Common Stock for a
consideration other than cash immediately prior to the close of business on the
date fixed for the determination of security
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holders entitled to receive such shares, and the value of the consideration
allocable to such shares of Common Stock shall be determined as provided in
Section 8(a)(2).
(5) The number of shares of Common Stock at any one time
deemed to be issued and outstanding, as determined for the purposes of Sections
8(b)(1) and 8(b)(2) hereof, shall include the aggregate number of shares of
Common Stock issued or issuable (subject to readjustment upon the actual
issuance thereof) upon the exercise of options, rights, warrants and upon the
conversion or exchange of convertible or exchangeable securities.
(6) As used herein, the phrase "Market Price" at any date
shall be deemed to be the last reported sale price, or, in the case no such
reported sale takes place on such day, the average of the last reported sales
prices for the last three (3) trading days, in either case as officially
reported by the principal securities exchange on which the Common Stock is
listed or admitted to trading, or, if the Common Stock is not listed or admitted
to trading on any national securities exchange, the average closing bid price as
furnished by the NASD through the NASD Automated Quotation System ("NASDAQ") or
similar organization if NASDAQ is no longer reporting such information, or if
the Common Stock is not quoted on NASDAQ, as determined in good faith by
resolution of the Board of Directors of the Company, based on the best
information available to it.
(b) Options, Rights, Warrants and Convertible and Exchangeable
Securities. Except in the case of the Company issuing rights to subscribe for
shares of Common Stock distributed to all the stockholders of the Company and
Holders of Underwriters' Warrants, if the Company shall at any time after the
date hereof issue options, rights or warrants to purchase shares of Common
Stock, or issue any securities convertible into or exchangeable for shares of
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Common Stock (other than the issuances referred to in Section 8(g) hereof), (i)
for a consideration per share less than the lessor of (a) the Purchase Price in
effect immediately prior to the issuance of such options, rights or warrants, or
such convertible or exchangeable securities or (b) the Market Price, or (ii)
without consideration, the Purchase Price in effect immediately prior to the
issuance of such options, rights or warrants, or such convertible or
exchangeable securities, as the case may be, shall be reduced to a price
determined by making a computation in accordance with the provisions of Section
8(a) hereof, provided that:
(1) The aggregate maximum number of shares of Common Stock
issuable under such options, rights or warrants shall be deemed to be issued and
outstanding at the time such options, rights or warrants were issued, and for a
consideration equal to the minimum purchase price per share provided for in such
options, rights or warrants at the time of issuance, plus the consideration
(determined in the same manner as consideration received on the issue or sale of
shares in accordance with the terms of the Underwriters' Warrants), if any,
received by the Company for such options, rights or warrants; provided, however,
that upon the expiration or other termination of such options, rights or
warrants, if any thereof shall not have been exercised, the number of shares of
Common Stock deemed to be issued and outstanding pursuant to this Section
8(b)(1) (and for the purposes of Section 8(a)(5) hereof) shall be reduced by
such number of shares as to which options, warrants and/or rights shall have
expired or terminated unexercised, and such number of shares shall no longer be
deemed to be issued and outstanding, and the Purchase Price then in effect shall
forthwith be readjusted and thereafter be the price which it would have been had
adjustment been made on the basis of the issuance only of shares actually issued
or issuable upon the exercise of those options, rights or warrants as to which
the exercise
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rights shall not be expired or terminated unexercised.
(2) The aggregate maximum number of shares of Common Stock
issuable upon conversion or exchange of any convertible or exchangeable
securities shall be deemed to be issued and outstanding at the time of issuance
of such securities, and for a consideration equal to the consideration
(determined in the same manner as consideration received on the issue or sale of
shares of Common Stock in accordance with the terms of the Underwriters'
Warrants) received by the Company for such securities, plus the minimum
consideration, if any, receivable by the Company upon the conversion or exchange
thereof; provided, however, that upon the termination of the right to convert or
exchange such convertible or exchangeable securities (whether by reason of
redemption or otherwise), the number of shares deemed to be issued and
outstanding pursuant to this Section 8(b)(2) (and for the purpose of Section
8(a)(5) hereof) shall be reduced by such number of shares as to which the
conversion or exchange rights shall have expired or terminated unexercised, and
such number of shares shall no longer be deemed to be issued and outstanding and
the Purchase Price then in effect shall forthwith be readjusted and thereafter
be the price which it would have been had adjustment been made on the basis of
the issuance only of the shares actually issued or issuable upon the conversion
or exchange of those convertible or exchangeable securities as to which the
conversion or exchange rights shall not have expired or terminated unexercised.
(3) If any change shall occur in the price per share
provided for in any of the options, rights or warrants referred to in Section
8(b)(1), or in the price per share at which the securities referred to in
Section 8(b)(2) are convertible or exchangeable, such options, rights or
warrants or conversion or exchange rights, as the case may be, shall be deemed
to have
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expired or terminated on the date when such price change became effective in
respect of shares not theretofore issued pursuant to the exercise or conversion
or exchange thereof, and the Company shall be deemed to have issued upon such
date new options, rights or warrants or convertible or exchangeable securities
at the new price in respect of the number of shares issuable upon the exercise
of such options, rights or warrants or the conversion or exchange of such
convertible or exchangeable securities.
(c) Subdivision and Combination. In case the Company shall at
any time issue any shares of Common Stock in connection with a stock dividend in
shares of Common Stock or subdivide or combine the outstanding shares of Common
Stock, the Purchase Price shall forthwith be proportionately decreased in the
case of a stock dividend or a subdivision or increased in the case of a
combination.
(d) Adjustment in Number of Securities. Upon each adjustment of
the Purchase Price pursuant to the provisions of this Section 8, the number of
Underwriters' Securities issuable upon the exercise of the Underwriters' Warrant
shall be adjusted to the nearest whole share by multiplying a number equal to
the Purchase Price in effect immediately prior to such adjustment by the number
of Underwriters' Securities issuable upon exercise of the Underwriters' Warrants
immediately prior to such adjustment and dividing the product so obtained by the
adjusted Purchase Price.
(e) Definition of Common Stock. For the purpose of this
Agreement, the term "Common Stock" shall mean the class of stock designated as
Common Stock in the Articles of Incorporation, of the Company as it may be
amended as of the date hereof.
(f) Reclassification, Merger or Consolidation. The Company will
not
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merge, reorganize or take any other action which would terminate the
Underwriters' Warrants without first making adequate provision for the
Underwriters' Warrants. In case of any reclassification or change of the
outstanding shares of Common Stock (other than a change in par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination), or in case of any consolidation of the Company with, or merger of
the Company with, or merger of the Company into, another corporation (other than
a consolidation or merger in which the Company is the continuing corporation and
which does not result in any reclassification or change of the outstanding
Common Stock except a change as a result of a subdivision or combination of such
shares or a change in par value, as aforesaid), or in the case of a sale or
conveyance to another corporation or other entity of the property of the Company
as an entirety, the Holders of each Underwriters' Warrant then outstanding or to
be outstanding shall have the right thereafter (until the expiration of such
Underwriters' Warrant) to purchase, upon exercise of such Underwriters' Warrant,
the kind and number of shares of stock and other securities and property
receivable upon such reclassification, change, consolidation, merger, sale or
conveyance as if the Holders were the owner of the shares of Common Stock
underlying the Underwriters' Warrants immediately prior to any such events at a
price equal to the product of (x) the number of shares issuable upon exercise of
the Underwriters' Warrants and (y) the Purchase Price in effect immediately
prior to the record date for such reclassification, change, consolidation,
merger, sale or conveyance, as if such Holders had exercised the Underwriters'
Warrants. In the event of a consolidation, merger, sale or conveyance of
property, the corporation formed by such consolidation or merger, or acquiring
such property, shall execute and deliver to the Holders a supplemental
underwriter's warrant agreement to such effect. Such supplemental underwriter's
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warrant agreement shall provide for adjustments which shall be identical to the
adjustments provided for in this Section 8. The provisions of this Section 8(f)
shall similarly apply to successive consolidations or mergers.
(g) No Adjustment of Purchase Price in Certain Cases.
Notwithstanding any provision to the contrary contained herein, no adjustment of
the Purchase Price shall be made:
(1) Upon the issuance or sale of (i) the Underwriters'
Warrants or the securities underlying the Underwriters' Warrants, (ii) the
securities sold pursuant to the Initial Public Offering or securities
underlying securities sold in the Initial Public Offering or securities to be
sold in a bona fide public offering pursuant to a firm commitment underwriting
or securities underlying securities sold in such firm commitment underwriting,
(iii) including the exceptions provided for the adjustment of the Purchase
Price included in Section 9(g)(i)-(vii) of the Warrant Agreement between the
Company, the Warrant Agent, and the Underwriters, and (iv) the shares issuable
pursuant to the options, warrants, rights, stock purchase agreements or
convertible or exchangeable securities outstanding or in effect on the date
hereof as described in the prospectus relating to the Initial Public Offering
or any issuable in the future pursuant to any stock option plan maintained by
the Company and described in the prospectus or adopted by the Company in the
future.
(2) If the amount of said adjustments shall aggregate less
than five ($.05) cents for one (1) share of Common Stock; provided, however,
that in such case any adjustment that would otherwise be required then to be
made shall be carried forward and shall be made at the time of and together with
the next subsequent adjustment which, together with any adjustment so carried
forward, shall aggregate at least five ($.05) cents for one (1) share of Common
Stock.
9. Exchange and Replacement of Warrant Certificates. Each
Underwriters'
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Warrant Certificate is exchangeable without expense, upon the surrender thereof
by the registered Holders at the principal executive office of the Company, for
a new Underwriters' Warrant Certificate of like tenor and date representing in
the aggregate the right to purchase the same number of Underwriters' Securities
in such denominations as shall be designated by the Holders thereof at the time
of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Underwriters' Warrant
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to it, and reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
the Underwriters' Warrant Certificates, if mutilated, the Company will make and
deliver a new Underwriters' Warrant Certificate of like tenor, in lieu thereof.
10. Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
aSnd/or Redeemable Warrants upon the exercise of the Underwriters' Warrants, nor
shall it be required to issue scrip or pay cash in lieu of fractional interests;
provided, however, that if a Holder exercises all Underwriters' Warrants held of
record by such Holder the fractional interests shall be eliminated by rounding
(up or down) any fraction to the nearest whole number of shares of Common Stock
or other securities, properties or rights.
11. Reservation and Listing of Securities. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock,
solely for the purpose of issuance upon the exercise of the Underwriters'
Warrants, such number of shares of Common
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Stock or other securities, properties or rights as shall be issuable upon the
exercise thereof and the exercise of the Redeemable Warrants. The Company
covenants and agrees that, upon exercise of the Underwriters' Warrants and
payment of the Purchase Price therefor, all the shares of Common Stock and other
securities issuable upon such exercise shall be duly and validly issued, fully
paid, non-assessable and not subject to the preemptive rights of any
stockholder. As long as the Underwriters' Warrants shall be outstanding, the
Company shall use its best efforts to cause the Common Stock to be listed
(subject to official notice of issuance) on all securities exchanges on which
the Common Stock issued in the Initial Public Offering may then be listed or
quoted.
12. Notices to Underwriters' Warrant Holders. Nothing contained in
this Agreement shall be construed as conferring upon the Holders the right to
vote or to consent or to receive notice as a stockholder in respect of any
meetings of stockholders for the election of directors or any other matter, or
as having any rights whatsoever as a stockholder of the Company. If, however, at
any time prior to the expiration of the Underwriters' Warrants and their
exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of its shares
of Common Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company, or
any option, right or warrant to subscribe therefor;
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or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall be
proposed; then, in any one or more of said events, the Company shall give
written notice of such event at least fifteen (15) calendar days prior to the
date fixed as a record date or the date of closing the transfer books for the
determination of the stockholders entitled to such dividend, distribution,
convertible or exchangeable securities or subscription rights, or entitled to
vote on such proposed dissolution, liquidation, winding up or sale. Such notice
shall specify such record date or the date of closing the transfer books, as the
case may be. Failure to give such notice or any defect therein shall not affect
the validity of any action taken in connection with the declaration or payment
of any such dividend, or the issuance of any convertible or exchangeable
securities, or subscription rights, options or warrants, or any proposed
dissolution, liquidation, winding up or sale.
13. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to the registered Holders of the Underwriters' Warrants,
to the address of such Holders as shown on the books of the Company; or
(b) If to the Company to the address set forth in Section 3
hereof or to such other address as the Company may designate by notice to the
Holders.
14. Supplements and Amendments. The Company and the Underwriters may
from time to time supplement or amend this Agreement without the approval of any
Holders of
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Underwriters' Warrant Certificates (other than the Underwriters) in order to
cure any ambiguity, to correct or supplement any provision contained herein
which may be defective or inconsistent with any provisions herein, or to make
any other provisions in regard to matters or questions arising hereunder which
the Company and the Underwriters may deem necessary or desirable and which the
Company and the Underwriters deem shall not adversely affect the interests of
the Holders of Underwriters' Warrant Certificates.
15. Binding Effect; Successors. All the covenants and provisions of
this Agreement shall be binding upon and inure to the benefit of the Company,
the Underwriters, the Holders and their respective successors and assigns
hereunder.
16. Termination. This Agreement shall terminate at the close of
business on ______________, 2002. Notwithstanding the foregoing, the
indemnification provisions of Section 7 shall survive such termination until the
close of business on the expiration of any applicable statute of limitations.
17. Governing Law; Submission to Jurisdiction. This Agreement and
each Underwriters' Warrant Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of New York and for all purposes shall
be construed in accordance with the laws of said state without giving effect to
the rules of said state governing the conflicts of laws. The Company, the
Underwriters and the Holders hereby each agree that any action, proceeding or
claim against it arising out of, or relating in any way to, this Agreement shall
be brought and enforced in the courts of the State of New York or of the United
States of America for the Southern District of New York, and irrevocably submits
to such jurisdiction, which jurisdiction shall be exclusive. The Company, the
Underwriters and the Holders hereby irrevocably waive
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any objection to such exclusive Jurisdiction or inconvenient forum. Any such
process or summons to be served upon any of the Company, the Underwriters and
the Holders (at the option of the party bringing such action, proceeding or
claim) may be served by transmitting a copy thereof, by registered or certified
mail, return receipt requested, postage prepaid, addressed to it at the address
set forth in Section 13 hereof. Such mailing shall be deemed personal service
and shall be legal and binding upon the party so served in any action,
proceeding or claim.
18. Entire Agreement, Modification. This Agreement (including the
Underwriting Agreement, to the extent portions thereof are referred to herein)
contains the entire understanding between the parties hereto with respect to the
subject matter hereof and thereof. Subject to Section 14, this Agreement may not
be modified or amended except by a writing duly signed by the Company and the
Holders of a Majority in Interest of the Underwriters' Securities (for this
purpose, treating all then outstanding Underwriters' Warrants as if they had
been exercised).
19. Severability. If any provision of this Agreement shall be held to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
20. Captions. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
21. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Underwriters and any other registered Holders of the Underwriters' Warrant
Certificates or Underwriters' Securities any legal
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or equitable right, remedy or claim under this Agreement; and this Agreement
shall be for the sole and exclusive benefit of the Company and the Underwriters
and any other Holders of the Underwriter's Warrant Certificates or Underwriters'
Securities.
22. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
ROCKWELL MEDICAL TECHNOLOGIES,
INC.
By:__________________________
Xxx Xxxxxx
President
XXXXX XXXX & CO., INC.
By:__________________________
Name:
Title:
X.X. XXXXXXX & CO., INC.
By:______________________
Name:
Title:
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EXHIBIT A
ROCKWELL MEDICAL TECHNOLOGIES, INC.
WARRANT CERTIFICATE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED FOR
SALE OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT, OR (ii) AN OPINION OF COUNSEL, IF SUCH OPINION AND COUNSEL SHALL BE
REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN EXEMPTION FROM
REGISTRATION UNDER THE ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT
REFERRED TO HEREIN.
EXERCISABLE COMMENCING _____________, 1999 THROUGH
5:00 P.M., NEW YORK TIME ON _________, 2003
No. UW- __________ Warrants
This Warrant Certificate certifies that registered holder of ________
Warrants to purchase initially, at any time from ________, 1999, until 5:00
p.m., New York time on __________, 2003 (the "Expiration Date"), up to 180,000
shares of Rockwell Medical Technologies, Inc.'s (the "Company") Common Stock,
no par value per share (the "Common Stock"), and/or up to 270,000 Redeemable
Warrants each exercisable to purchase one share of Common Stock (the "Common
Stock Warrants"), at a purchase price of $6.60 per share of Common Stock and
$.165 per Redeemable Warrant (the "Purchase Price"), upon the surrender of this
Warrant Certificate and payment of the applicable Purchase Price at an office
or agency of the Company, but subject to the conditions set forth herein and in
the underwriters' warrant agreement, dated as of __________, 1998 (the "Warrant
Agreement"), by and between the Company and Xxxxx Xxxx & Co., Inc. ("Xxxxx
Xxxx" or the "Representative"), as the Representative of the several
underwriters (the "Underwriting Group") named in the Underwriting Agreement,
dated ___________, 1998 between the Company and Xxxxx Xxxx. The Underwriting
Group is collectively referred to herein as the "Underwriters." Payment of the
Purchase Price shall be made by certified or cashier's check or money order
payable to the order of the Company.
No Warrant may be exercised after 5:00 p.m., New York time, on the
Expiration
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Date, at which time all Warrants evidenced hereby, unless exercised prior
thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement between
the Company and the Underwriters, which Warrant Agreement is hereby incorporated
by reference in and made a part of this instrument and is hereby referred to for
a description of the rights, limitation of rights, obligations, duties and
immunities thereunder of the Company and the holders (the words "holders" or
"holder" meaning the registered holders or registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the respective Purchase Prices and the type and/or number of the
Company's securities issuable upon the exercise of these Warrants, may, subject
to certain conditions, be adjusted. In such event, the Company will, at the
request of the holder, issue a new Warrant Certificate evidencing the adjustment
in the Purchase Price and the number and/or type of securities issuable upon the
exercise of the Warrants; provided, however, that the failure of the Company to
issue such new Warrant Certificates shall not in any way change, alter, or
otherwise impair, the rights of the holder as set forth in the Warrant
Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange as provided herein,
without any charge except for any tax or other governmental charge imposed in
connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined
in the Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
[THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the undersigned has executed this certificate this
___ day of _____________, 1998.
ROCKWELL MEDICAL TECHNOLOGIES,
INC.
By:___________________________________
Xxx Xxxxxx, President
ATTEST:
By:__________________________
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FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED ____________________________________ hereby sells,
assigns and transfers unto _______________________________.
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _________ Attorney, to
transfer the within Warrant Certificate on the books of Rockwell Medical
Technologies, Inc., with full power of substitution.
Dated:__________________
Signature____________________
(Signature must conform in all respects to the
name of the holder as specified on the face
of the Warrant Certificate.)
_______________________________
(Insert Social Security or Other
Identifying Number of Holders)
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FORM OF ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise the right, represented by
this Warrant Certificate, to purchase shares of Common Stock and/or Redeemable
Warrants and herewith tenders in payment of such securities a certified or
cashier's check or money order payable to the order of Rockwell medical
Technologies, Inc. in the amount of $ ___________, all in accordance with the
terms hereof. The undersigned requests that certificates for such securities be
registered in the name of __________________________ whose address is
______________________ and that such certificates be delivered to
________________________________ whose address is _____________________________
____________________________. This form is null and void at 5:00 p.m., New York
time, on ________, 2003.
Dated:___________________
Signature__________________________
(Signature must conform in all respects
to the me of the holder as specified on
the face of the Warrant Certificate.)
____________________________________
(Insert Social Security or Other
Identifying Number of Holders)
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