EXHIBIT 10
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAW. THIS WARRANT AND ANY
INTEREST HEREIN MAY BE OFFERED, TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF ONLY
IF REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR IF AN EXEMPTION
FROM REGISTRATION IS AVAILABLE, AND ONLY IN STRICT COMPLIANCE WITH APPLICABLE
STATE SECURITIES LAWS AND REGULATIONS.
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WARRANT
FOR THE PURCHASE OF
COMMON STOCK
OF
THE FEMALE HEALTH COMPANY, INC.
Warrant Number 7
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THIS CERTIFIES THAT, FOR VALUE RECEIVED, Xxxxxxx X. Xxxxxxxx, or assigns,
is entitled to subscribe for and purchase from The Female Health Company, Inc. a
Wisconsin corporation (the Company"), 200,000 shares of the fully paid and non-
assessable shares of Common Stock, $.01 par value per share, of the Company, at
the Purchase Price (as hereinafter defined) per share.
This Warrant and all warrants issued in substitution or exchange for all or
part hereof are herein individually called a "Warrant" and collectively the
"Warrants".
1. Definitions. When used in this Warrant, the following terms shall have
the meanings specified:
(a) "Affiliate" shall mean any Person directly or indirectly
controlling, controlled by or under direct or indirect common control with
another Person. A Person shall be deemed to control a corporation if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such corporation, whether through
the ownership of voting securities, by contract or otherwise.
(b) "Common Shares" shall mean and include the Company's presently
authorized shares of Common Stock and shall also include any capital stock of
any class of the Company hereafter authorized which shall not be limited to a
fixed sum or percentage of par value in respect of the rights of the holders
thereof to participate in dividends or in the distribution of assets upon the
voluntary or involuntary liquidation, dissolution or winding up of the Company;
provided that the shares purchasable pursuant to this Warrant shall include
shares designated as Common Stock of the Company on the date of original issue
of this Warrant or, in case of any reclassification of the outstanding shares
thereof, the stock, securities or assets provided for in Section 5(a) hereof.
(c) "Common Stock" shall mean the common stock, $.01 par value per
share, of the Company.
(d) "Expiration Date" shall mean the earliest to occur of the
following: (i) the exercise of all of the rights to purchase Common Stock
represented by this Warrant; or (ii) March 25, 2008.
(e) "Holder" shall mean Xxxxxxx X. Xxxxxxxx and any permitted
transferee or assignee of all or part of this Warrant and the rights hereunder;
provided that, as used in Section 12 hereof such term shall also include any
holder or holders of Common Stock (or Other Securities) issued on the exercise
of this Warrant other than Persons who received such Common Stock (or Other
Securities) in a public offering or pursuant to Rule 144 promulgated under the
Securities Act of 1933, as amended.
(f) "Holder Group" shall have the meaning assigned thereto in Section
10 hereof.
(g) "Purchase Price" shall mean the per share purchase price of $1.16
(subject to adjustment under Section 5) to be paid for shares of Common Stock
purchased pursuant to the exercise of this Warrant.
(h) "Other Securities", as used in Section 12 hereof, shall mean any
stock (other than Common Stock) and other securities of the Company or any other
Person (corporate or otherwise) which the Holder of this Warrant at any time
shall be entitled to receive, or shall have received, on the exercise of this
Warrant, in lieu of or in addition to Common Stock, or which at any time shall
be issuable or shall have been issued in exchange for or in replacement of
Common Stock or Other Securities pursuant to Section 5 hereof or otherwise.
(i) "Person shall mean and include an individual, partnership,
corporation, trust, joint venture, incorporated organization and a government or
any department or agency thereof.
2. Exercise: Issuance of Certificates: Payment for Shares. This Warrant
may be exercised by the Holder, in whole or in part, at any time and from time
to time on or after March 25, 1999, by the surrender of this Warrant (properly
endorsed if required), and payment by the Holder to the Company of the Purchase
Price for each share of Common Stock purchased with respect to such exercise by
wire transfer or certified or cashiers check. Upon such surrender and payment,
the Holder shall be entitled to receive a certificate or certificates
representing the shares of Common Stock so purchased, which certificate(s) may
contain a standard legend indicating that such shares have not been registered
under the Securities Act and prohibiting resale thereof without registration or
an opinion of counsel that an exemption from registration is available. The
Company agrees that the shares so purchased shall be deemed to be issued to the
Holder as the record owner of such shares as of the close of business on the
date on which this Warrant shall have been surrendered and payment made for such
shares as aforesaid. Subject to the Company's Amended and Restated Articles of
Incorporation, certificates for the shares of Common Stock so purchased shall be
delivered to the Holder within a reasonable time, not exceeding ten days, after
the rights represented by this Warrant shall have been so exercised. If the
rights of the Holder of this Warrant are exercised in part, the number of shares
of Common Stock which thereafter may be purchased pursuant to this Warrant shall
be reduced accordingly and the Company shall reissue a Warrant or Warrants of
like tenor representing in the aggregate the right to purchase the number of
shares of Common Stock as so reduced.
3. Affirmative Covenants.
(a) The Company covenants and agrees that the shares of Common Stock
issuable upon exercise of the rights represented by this Warrant will, upon such
exercise and issuance in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable (except as set forth in Section
180.0622(2)(b), Wis. Stats., as amended and interpreted) and free from all
taxes, liens and charges with respect to the issue. The Company further
covenants and agrees that, until the Expiration Date, the Company will at all
times have authorized, and reserved for
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the purpose of issue upon total or partial exercise of the rights represented by
this Warrant, a sufficient number of shares of its Common Stock to provide for
the exercise of the rights represented by this Warrant.
(b) The Company further covenants and agrees that, until the
Expiration Date, the Company will deliver to the Holder copies of all reports
and information filed by the Company with the Securities and Exchange Commission
("SEC") pursuant to the Securities Exchange Act of 1934, as amended, within 10
days after receiving a written request from the Holder.
4. Issuance of Preferred Stock. So long as this Warrant remains
outstanding, the Company will not issue any capital stock of any class preferred
as to dividends or as to the distribution of assets upon voluntary or
involuntary liquidation, dissolution or winding up, unless the rights of the
holders thereof shall be limited to a fixed sum or percentage of par value in
respect of participation in dividends and in the distribution of such assets.
5. Anti-Dilution Provisions. The above provisions are, however, subject
to the following:
(a) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities or assets with respect to or in
exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby the Holder hereof shall hereafter have the right to
purchase and receive upon the basis and upon the terms and conditions specified
in this Warrant and in lieu of the shares of the Common Stock of the Company
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby, such shares of stock, securities or assets 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 had such reorganization, reclassification,
consolidation, merger or sale not taken place, and in any such case 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 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, together with such
adjustment in the Purchase Price as may be applicable with respect thereto so
that the aggregate price to be paid for shares issued pursuant to this Warrant
shall be neither increased nor decreased. The Company shall not effect any such
consolidation, merger or sale, unless prior to the consummation thereof the
successor corporation (if other than the Company) resulting from such
consolidation or merger or the corporation purchasing such assets shall assume
by written instrument executed and mailed to the Holder hereof at the last
address of such Holder appearing on the books of the Company, the obligation to
deliver to such Holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such Holder may be entitled to
purchase.
(b) In case any time:
(l) the Company shall declare any cash dividend on its Common Stock at
a rate in excess of the rate of the last cash dividend theretofore paid;
(2) the Company shall pay any dividend payable in stock upon its
Common Stock, make any distribution (other than regular cash dividends) to the
holders of its Common Stock or redeem any shares of its Common Stock;
(3) the Company shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any class or other rights;
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(4) there shall be any capital reorganization, reclassification of the
capital stock of the Company, or consolidation or merger of the Company with, or
sale of all or substantially all of its assets to another corporation; or
(5) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give written notice,
by first class mail, postage prepaid, addressed to the Holder of this Warrant at
the address of such Holder as shown on the books of the Company, of the date on
which (aa) the books of the Company shall close or a record shall be taken for
such dividend, distribution or subscription rights, or (bb) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of Common Stock of record shall participate in
such dividend distribution or subscription rights, or shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, as the case may be. Such written notice shall be
given at least 15 days prior to the action in question and not less than 15 days
prior to the record date or the date on which the Company's transfer books are
closed in respect thereto.
6. Certain Events. If any event occurs as to which the provisions of
this Warrant are not strictly applicable or, if strictly applicable would not
fairly protect the rights of the Holder in accordance with the essential intent
and principles of such provisions, then the Board of Directors of the Company
shall make an adjustment in the application of such provisions, in accordance
with such essential intent and principles, so as to protect the Holder's rights
as aforesaid.
7. Term of Warrant. This Warrant shall remain outstanding and
exercisable until the Expiration Date. To the extent not previously exercised,
the rights to purchase Common Stock represented by this Warrant shall thereupon
terminate.
8. Issue Tax. The issuance of certificates for shares of Common Stock
upon the total or partial exercise of this Warrant shall be made without charge
to the Holder for any issuance tax in respect thereof.
9. Closing of Books. The Company will at no time close its transfer books
against the transfer of this Warrant or act in any manner which interferes with
the timely exercise of the rights represented by this Warrant.
10. Transfer of Warrant. Subject to any registration or qualification
requirements under the Securities Act and applicable state securities laws, this
Warrant and all rights hereunder are transferable, in whole or in part, without
charge to the Holder, by the Holder in person or by duly authorized attorney,
upon surrender of this Warrant to the Company properly endorsed; provided that
the Company may require in connection with such transfer an opinion of counsel
to the effect that such transfer qualifies for an exemption from the
registration requirements of the Securities Act. If this Warrant is transferred
in part in accordance with the terms hereof, the Company shall reissue a Warrant
or Warrants of like tenor representing in the aggregate the right to purchase
the number of shares of Common Stock represented by this Warrant immediately
prior to such transfer and thereafter the Holder and all transferees and
assignees shall constitute the "Holder Group" for purposes of Section 12 hereof.
11. No Voting Rights. This Warrant shall not entitle the Holder to any
voting rights as a shareholder of the Company.
12. Registration Rights. All references in this Section 12 to Common
Stock shall be deemed to include Other Securities as applicable.
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12.1 Demand Registration. At any time (whether before or after the
Expiration Date) following the exercise of the right to purchase Common Stock
pursuant to this Warrant, a Holder may demand registration under the Securities
Act of 1933, as amended (the "Securities Act") of the resale of all or part of
the Common Stock issuable or which has been issued upon exercise of this
Warrant, on Form S-1 or any similar long-form registration or, in the Company's
sole discretion, on Form S-2 or S-3 or any similar short-form registration, if
available under applicable rules of the SEC. If such request is made by less
than all Holders, the Company shall send written notice of such registration
request to the remaining Holders within 15 days of receipt of the initial
registration request. Unless a remaining Holder shall deliver to the Company,
within 20 days after such notice is sent by the Company, a written request for
inclusion in the registration demanded by the initial request of all or part of
the Common Stock issuable or which has been issued upon exercise of the Warrant
held by such remaining Holder, all rights of such remaining Holder under this
Section 12.1 shall be terminated. The written request to be delivered by a
Holder to the Company pursuant to this Section 12.1 shall (i) specify the number
of shares intended to be offered and sold by the Holder, (ii) express the
present intent of the Holder to offer such shares for distribution, and (iii)
describe the nature and method of the proposed offer and sale thereof. The
registration requested pursuant to this Section 12.1 is referred to herein as
"Demand Registration", which term shall also include any Demand Registration as
defined in any of the Dearholt Stock Documents referenced in Section 12.1(a)
hereof.
(a) Number of Registrations. Notwithstanding any contrary provision
contained in this document, the Note Purchase and Warrant Agreement between the
Company and Xxxxxxx X. Xxxxxxxx of even date, the Stock Issuance Agreement
between such parties of even date (the "1999 Stock Issuance Agreement"), and
such other documents, agreements and warrants that the Holder may demand
registration under the Securities Act (collectively, the "Dearholt Stock
Documents"), the Holder Group shall be entitled to an unlimited number of Demand
Registrations under all such Dearholt Stock Documents, and shall be entitled to
include all or part of the stock received under any or all of such Dearholt
Stock Documents in any Demand Registration, as the Holder Group shall request
from time to time; provided, however, that, except for Demand Registrations
requested pursuant to the last sentence of this Section 12.1(a), any such Demand
Registration shall include at least two hundred thousand (200,000) shares of
Common Stock (subject to adjustment pursuant to Section 5(a)). A registration
initiated as a Demand Registration may be withdrawn at any time at the request
of the Holders of a majority of the shares of the Common Stock requested to be
included in such Demand Registration (the "Required Percentage"); provided that
in the event a registration initiated as a Demand Registration is so withdrawn,
all expenses in connection with such withdrawn registration (including, without
limitation, reasonable fees of counsel and accountants for the Company) shall be
paid by the participating Holders, pro rata. In the event Xxxxxxx X. Xxxxxxxx
shall pledge or assign his rights and interests to all or part of the Common
Stock issued to him upon exercise of this Warrant, or upon exercise of his
rights under any of the Dearholt Stock Documents, as collateral pursuant to a
borrowing, the rights to Demand Registrations hereunder may be assigned and
transferred to said lender (and only one lender at any given time) in connection
therewith, and said lender shall be entitled to request such Demand
Registrations at any time, without regard to the two hundred thousand (200,000)
share minimum under the first sentence of this Section 12.1(a), and
notwithstanding the provisions of the first sentence of Section 12.1(c) below.
(b) Priority on Demand Registrations. The Company will not include in
the Demand Registration any securities which are not Common Stock owned by a
Holder, without the written consent of the Required Percentage of Holders. If
the Demand Registration is an underwritten offering, and the managing
underwriters advise the Company in writing that in their opinion the number of
shares of Common Stock requested to be included exceeds the number of shares of
Common Stock which can be sold in such offering without adversely affecting the
market price of the Company's Common Stock, the Company will include in such
registration (pro rata from shares of Common Stock requested to be included by
each participating Holder), prior to the inclusion of any securities which are
not shares of Common Stock owned by a Holder, the number of shares of Common
Stock owned by the Holders requested to be included which in the opinion of such
underwriters can be sold without such adverse
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affect; and the balance of the shares of Common Stock which Holder requested to
be included in such offering shall be withheld from sale for a period of time
requested by the underwritten, but not to exceed one hundred twenty (120) days.
(c) Restrictions on Demand Registration. Subject to the next following
sentence and the last sentence of Section 12.1(a) above, the Company will not be
obligated to effect a Demand Registration within one hundred twenty (120) days
after the effective date of a registration in which the Holder was given an
opportunity to participate in a registered offering pursuant to Section 12.2
hereof. In the event that a Holder requests to participate in a registration
under Section 12.2 hereof and satisfies the conditions of Section 12.3, and for
whatever reason all of the shares of Common Stock which such Holder so requests
to be registered are not registered or are not permitted to be offered for sale
and sold prior to shares of Common Stock or other equity securities being
registered and offered by the Company in such registration, then the provisions
of the first sentence of this Section 12.1(c) shall not apply, and the Company
shall be obligated to effect a Demand Registration requested by such Holder as
soon as practicable in accordance with the terms hereof. The Company may
postpone for up to ninety (90) days the filing or the effectiveness of a
registration statement for a Demand Registration if the Company and the Required
Percentage of Holders reasonably and in good faith agree that such Demand
Registration might have an adverse effect on any proposal or plan by the Company
to engage in any financing, acquisition of assets (other than in the ordinary
course of business) or any corporate reorganization, merger, consolidation,
tender offer or similar transaction.
(d) Selection of Underwriters. If the Demand Registration involves an
underwritten public offering, the Company will have the right to select the
investment banker(s) and manager(s) to administer the offering, subject to the
approval of the Required Percentage of Holders (which will not be unreasonably
withheld) of such investment banker(s) and managers(s).
12.2 Participation in Registered Offerings. If the Company at any time or
times proposes or is required to register any of its Common Stock or other
equity securities for public sale in an underwritten public offering for cash
(other than in connection with any stock option, bonus or other employee benefit
plan or arrangement) under the Securities Act or any applicable state securities
law, it will each such time give written notice to each Holder of its intention
to do so. Upon the written request of a Holder given within thirty (30)
business days after receipt of any such notice (which request shall state the
intended method of disposition of such equity securities and shall state in
reasonable detail, to the extent practicable, the net consideration, after all
commissions and discounts which the prospective seller or sellers expect to
receive upon such disposition), the Company shall use all reasonable efforts to
cause all such Common Stock which the Holder so requested to be registered
(which request will not be for less than two hundred thousand (200,000) shares
of Common Stock) to be registered under the Securities Act and any applicable
state securities laws (provided, that if the managing underwriter advises that
less than all of the registered shares of equity securities should be offered
for sale so as not to materially and adversely affect the price or salability of
the offering being registered by the Company or the participating Holders for a
period not to exceed one hundred twenty (120) days, the participating Holders
will, if requested by the Company, withhold from sale for such period of time
such number of shares of Common Stock (pro rata from the shares of Common Stock
requested to be included by the participating Holders) as the underwriter may
specify; provided further that in such event a pro rata number of shares
proposed to be offered by the Company and all other shareholders of the Company
also shall be similarly withheld from sale), all to the extent requisite to
permit the sale or other disposition (in accordance with the intended method of
disposition thereof as aforesaid) by the prospective seller or sellers of the
securities so registered. In the event an underwriter is involved with a
registration initiated by the Company of the Common Stock, and a Holder requests
to participate in the registration, the Holder must commit to sell through the
underwriter. The Company may, in its sole discretion, withdraw any registration
contemplated by this Section 12.2 and abandon the proposed offering in which a
Holder had requested to participate without any further obligation to such
Holder with respect to such registration statement or offering; provided however
that such Holder shall be indemnified by
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the Company for any fees, costs and expense of and incidental to such
registration, excluding the fees and disbursements of counsel acting solely on
behalf of such Holder.
12.3 Obligations of the Holder. It shall be a condition precedent to the
obligation of the Company to register any Common Stock of a Holder pursuant to
Sections 12.1 and 12.2 hereof that such Holder shall (i) furnish to the Company
such information regarding the Common Stock held by it and the intended method
of disposition thereof and other information concerning such Holder as the
Company shall reasonably request and as shall be required in connection with the
registration statement to be filed by the Company; (ii) agree to abide by such
additional or customary terms affecting the proposed offering as reasonably may
be requested by the managing underwriter of such offering, including a
requirement, if applicable, to withhold (on a pro-rata basis) from the public
market for a period of at least one hundred twenty (120) days after any such
offering, any shares excluded from the offering at the instance of the
underwriter as permitted under Sections 12.1 and 12.2 hereof; and (iii) agree in
writing in form satisfactory to the Company to pay the underwriting discounts
and commissions applicable to the Common Stock being sold by such Holder
(subject to the maximum amounts set forth in Section 12.5 hereof).
12.4 Registration Proceedings. If and whenever the Company is required by
the provisions of Sections 12.1 and 12.2 hereof to effect the registration of
the Common Stock under the Securities Act, until the securities covered by such
registration statement have been sold or for six (6) months after effectiveness,
whichever is the shorter period of time, the Company shall:
(a) Promptly prepare and file with the SEC a registration statement
with respect to such Common Stock and use all reasonable efforts to cause such
registration statement to become effective as soon as practicable after the
filing thereof and to remain effective, subject to the Company's right to
withdraw any registration contemplated by Section 12.2 hereof;
(b) Prepare and file with the SEC such amendments to such registration
statement and supplements to the prospectus contained therein as may be
necessary to keep such registration statement effective;
(c) Furnish to each participating Holder and to the underwriters of
the securities being registered such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus and such other
documents as such underwriters may reasonably request in order to facilitate the
public offering of such securities;
(d) Use all reasonable efforts to register or qualify the securities
covered by such registration statement under such state securities or "Blue Sky"
laws of such jurisdictions as the participating Holders may reasonably request
within twenty (20) days prior to the original filing of such registration
statement, except that the Company shall not for any purpose be required to
qualify to do business as a foreign corporation in any jurisdiction wherein it
is not so qualified, and except that the Company shall not be required to so
register or qualify in more than twenty (20) such jurisdictions if in the good
faith judgment of the managing underwriter such additional registrations or
qualifications would be unreasonably expensive or harmful to the consummation of
the proposed offering;
(e) Notify each participating Holder, promptly after the Company shall
receive notice thereof, of the time when such registration statement has become
effective or a supplement to any prospectus forming a part of such registration
statement has been filed;
(f) Notify each participating Holder promptly of any request by the
SEC for the amending or supplementing of such registration statement or
prospectus or for additional information;
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(g) Prepare and file with the SEC, promptly upon the request of a
participating Holder, any amendments or supplements to such registration
statement or prospectus which, in the opinion of counsel for such Holder and
counsel for the underwriter or manager of the offering, are required under the
Securities Act or the rules and regulations thereunder in connection with the
distribution of Common Stock by such Holder;
(h) Prepare and promptly file with the SEC and promptly notify each
participating Holder of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event shall
have occurred as the result of which any such prospectus or any other prospectus
as then in effect would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading;
(i) In case a participating Holder or any underwriter for a Holder is
required to deliver a prospectus at a time when the prospectus then in
circulation is not in compliance with the Securities Act, the Company will
prepare and file such supplements or amendments to such registration statement
and such prospectus or prospectuses as may be necessary to permit compliance
with the requirements of the Securities Act;
(j) Advise each participating Holder, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use all reasonable
efforts to prevent the issuance of any stop order or to obtain its withdrawal if
such stop order should be issued;
(k) Not file any amendment or supplement to such registration
statement or prospectus to which a participating Holder shall reasonably have
objected on the grounds that such amendment or supplement does not comply in all
material respects with the requirements of the Securities Act or the rules and
regulations thereunder, after having been furnished with a copy thereof at least
two (2) business days prior to the filing thereof; and
(l) At the request of a participating Holder (i) use all reasonable
efforts to obtain and furnish on the effective date of the registration
statement or, if such registration includes an underwritten public offering, at
the closing provided for in the underwriting agreement, an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to each participating
Holder, which shall contain such opinions as are customary in an underwritten
public offering, or, if the offering is not underwritten, shall state that such
registration statement has become effective under the Securities Act and that
(or substantially to the effect that): (a) to the best of such counsel's
knowledge, no stop order suspending the effectiveness thereof has been issued
and no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act; (b) the registration statement, related
prospectus and each amendment or supplement thereto comply as to form in all
material respects with the requirements of the Securities Act and applicable
rules and regulations of the SEC thereunder (except that such counsel need
express no opinion as to financial statements, schedules or other financial or
statistical data contained therein); (c) such counsel has no reason to believe
that either the registration statement or the prospectus or any amendment or
supplement thereto (other than financial statements and schedules or financial
and statistical data, as to which such counsel need not comment) contains any
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;
(d) the description in the registration statement or prospectus or any amendment
or supplement thereto of all legal and governmental matters and all contracts
and other legal documents or instruments described therein are accurate in all
material respects; and (e) such counsel does not know of any legal or
governmental proceedings, pending or threatened, required to be described in the
registration statement or prospectus or any amendment or supplement thereto
which are not described as required, nor of any contracts or documents or
instruments of the character required to be described in the registration
statement or prospectus or amendment or supplement thereto or to be filed as
exhibits to the registration statement, which are not
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described and filed as required; and (ii) use all reasonable efforts to obtain
letters dated on such effective date, and such closing date, if any, from the
independent certified public accountants of the Company, addressed to the
underwriters, if any, and to each participating Holder, stating that they are
independent certified public accountants within the meaning of the Securities
Act and dealing with such matters as the underwriters may request, or, if the
offering is not underwritten, stating that in the opinion of-such accountants,
the financial statements and other financial data pertaining to the Company
included in the registration statement or the prospectus or any amendment or
supplement thereto comply in all material respects with the applicable
accounting requirements of the Securities Act; such opinion of counsel shall
additionally cover such legal matters with respect to the registration and with
respect to which such opinion is being given as a participating Holder may
reasonably request; such letter from the independent certified public
accountants shall additionally cover such other financial matters, including
information as to the period ending not more than five (5) business days prior
to the date of such letter, with respect to the registration statement and
prospectus as a participating Holder may reasonably request.
12.5 Expenses. With respect to each inclusion of Common Stock of a Holder
in a registration statement pursuant to Sections 12.1 and 12.2 hereof, all
registration expenses, fees, costs and expenses of and incidental to such
registration, including any public offering in connection therewith shall be
borne by the Company (excluding the fees and disbursements of advisors retained
by the Holder and counsel acting solely on behalf of the Holder); provided,
however, that the Holder shall bear the Holder's pro rata share of the
underwriting discount and commissions (up to a maximum aggregate amount equal to
8% of the offering price of the Holder's shares so offered). The fees, costs
and expenses of registration to be borne by the Company shall include, without
limitation, all registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company (including the cost of
any special audit requested in order to effect such registration), fees and
disbursements of counsel for the underwriter or underwriters of such securities
(if the Company and/or selling security holders are required to bear such fees
and disbursements), all legal fees and disbursements and other expenses of
complying with state securities or blue Sky laws of any jurisdiction in which
the securities to be offered are to be registered or qualified.
12.6 Indemnification of Holders. Subject to the conditions set forth
below, in connection with any registration of securities pursuant to Sections
12.1 or 12.2 hereof, the Company agrees to indemnify and hold harmless each
Holder and each person, if any, who controls the Holder (and the respective
officers, directors and agents of Holders), within the meaning of Section 15 of
the Securities Act, as follows:
(a) Against any and all loss, claim, damage and expense whatsoever
arising out or based upon (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing or defending any
litigation, commenced or threatened, or any claim whatsoever based upon) any
untrue or alleged untrue statement of a material fact contained in any
preliminary prospectus (if used prior to the effective date of the registration
statement), the registration statement or the final prospectus (as from time to
time amended and supplemented if the Company shall have filed with the SEC any
amendment thereof or amendment thereto) if used within the period during which
the Company is required to keep the registration statement or prospectus
current, or in any application or other document executed by the Company or
based upon written information furnished by the Company filed in any
jurisdiction in order to qualify the Company's securities under the securities
laws thereof; or the omission or alleged omission therefrom of 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; or any
other violation of applicable federal or state statutory or regulatory
requirements or limitations relating to action or inaction by the Company in the
course of preparing, filing, or implementing such registered offering; provided,
however, that the indemnity agreement contained in this Section 12.6(a) shall
not apply to any loss, claim, damage, liability or action arising out of or
based upon any untrue or alleged untrue statement or omission made in reliance
upon and in conformity with any information furnished in writing to the Company
by or on behalf of the Holder expressly for use in connection therewith;
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(b) Subject to the proviso contained in the last sentence of Section
12.6(a) above, against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission or any such alleged untrue statement or
omission (including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing or defending against any such
litigation or claim) if such settlement is effected with the written consent of
the Company and no indemnity shall inure to the benefit of the Holder or any
controlling person thereof if the person asserting the claim failed to receive a
copy of the final prospectus at or prior to the written confirmation of the sale
of shares of Common Stock to such person if the untrue statement or omission had
been corrected in such final prospectus and the failure to receive such final
prospectus is not a necessary element of such person's claim;
(c) In no case shall the Company be liable under this indemnity
agreement with respect to any claim made against the Holder or any such
controlling person (or its respective officers, directors and agents) unless the
Company shall be notified, by letter or by telegram confirmed by letter, of any
claim made or action commenced against such persons, reasonably promptly (but in
any event within twenty (20) days of receipt of such claim or, in the event that
any summons or other service of process requires a responsive pleading within
thirty (30) days or less time, within ten (10) days after receipt of such
summons or other process) after such person shall have received notice of such
claim or been served with the summons or other legal process giving information
as to the nature and basis of the claim, but failure to so notify the Company
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. The Company shall be entitled to
participate at its own expense in the defense of any suit brought to enforce any
such claim, but if the Company elects to assume the defense, such defense shall
be conducted by counsel chosen by it, provided that such counsel is reasonably
satisfactory to the Holder. In the event the Company elects to assume the
defense of any such suit and retain such counsel, the Holder shall, after the
date the Holder is notified of such election, bear the fees and expenses of any
counsel thereafter retained by the Holder as well as any other expenses
thereafter incurred by the Holder in connection with the defense thereof;
provided, however, that the Company shall bear the fees and expenses of any such
separate counsel retained by the Holder if the counsel representing the Company
has a conflict of interest (which is not waived) with the Holder which would
prohibit such counsel from representing the Holder.
12.7 Indemnification of Company. Each Holder participating in any
registered offering pursuant to Section 12.1 or 12.2 above agrees to indemnify
and hold harmless the Company and each of the officers and directors and agents
of it and each other person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act against any and all such losses,
liabilities, claims, damages and expenses as are indemnified against by the
Company under Section 12.6 hereof; provided, however, that such indemnification
shall be limited to statements or omissions, if any, made (or in settlement of
any litigation effected with the written consent of the Holder alleged to have
been made) in any preliminary prospectus, the registration statement or
prospectus or any amendment or supplement thereof or any application or other
document in reliance upon, and in conformity with, written information furnished
in respect of the Holder, by or on behalf of the Holder expressly for use in any
preliminary prospectus, the registration statement or prospectus or any
amendment or supplement thereof or in any such application or other document.
In case any action shall be brought against the Company, or any other person so
indemnified based on any preliminary prospectus, the registration statement or
prospectus or any amendment or supplement thereof or any such application or
other documents, in respect of which indemnity may be sought against a Holder,
it shall have the rights and duties given to the Company, and each other person
so indemnified shall have the rights and dudes given to a Holder, by the
provisions of Section 12.6(c) hereof. The Company agrees to notify the Holder
promptly after the assertion of any claim against the Company in connection with
the sale of securities covered by this Warrant.
12.8 Future Registration Rights. The Company may agree with its
shareholders other than the Holders to allow their participation in any
registered offering which may be requested pursuant to Section 12.1 hereof,
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provided all such rights of participation by shareholders other than the Holders
shall be subordinated to the rights of the participating Holders herein, in a
manner reasonably satisfactory to the Required Percentage of such Holders and
their counsel.
13. Descriptive Headings. The descriptive headings of the several
sections of this Warrant are inserted for convenience only and do not constitute
a part of this Warrant.
14. Notices. Any notice or other communication pursuant to this Warrant
shall be in writing and shall be deemed sufficiently given upon receipt, if
personally delivered or telecopied (with receipt acknowledged), or if mailed,
upon deposit with the United States Postal Service by first class, certified or
registered mail, postage prepaid, return receipt requested, addressed as
follows:
(a) If to the Company, to The Female Health Company, 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Secretary, or
such other address as the Company has designated in writing to the Holder.
(b) If to the Holder, to Xxxxxxx X. Xxxxxxxx, Insurance Processing
Center, 000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 or to such other
address as the Holder has designated in writing to the Company.
15. Replacement of Warrant. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and upon
receipt of written indemnification of the Company by the Holder in form and
substance reasonably satisfactory to the Company, the Company shall execute and
deliver to the Holder a new Warrant of like date, tenor and denomination.
16. Governing Law. This Warrant shall be construed and interpreted in
accordance with the internal laws of the State of Wisconsin.
17. Successors and Assigns. The provisions of this Warrant shall be
binding upon and inure to the benefit of the Company and the Holder and their
respective successors, assigns and transferees.
18. Further Assurances. The Company agrees that it will execute and
record such documents as the Holder shall reasonably request to secure for the
Holder any of the rights represented by this Warrant.
19. Amendment and Modifications. This Warrant may be amended, modified or
supplemented only by written agreement of the Company and the Holder.
IN WITNESS WHEREOF, The Female Health Company has caused this Warrant to be
signed by its duly authorized officer and this Warrant to be dated as of March
25, 1999.
THE FEMALE HEALTH COMPANY
By:/s/ X. X. Xxxxxxx
-----------------------------
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Chairman of the Board
and Chief Executive Officer
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