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EXHIBIT 4.2
UPO-1 UNDERWRITER'S UNIT PURCHASE OPTION
Dated: ________________, 1997
THIS CERTIFIES THAT _________________________________ is entitled to
purchase from ROCKWELL MEDICAL TECHNOLOGIES, INC., a Michigan corporation (the
"Company"), ______Units at a purchase price of $_______ per Unit (the "Exercise
Price"), subject to adjustment as provided in paragraph 8 hereof, at any time
during the four-year period commencing one (1) year from the date hereof. Each
Unit consists of one (1) share of the Company's common stock, no par value per
share (the "Common Stock") and two (2) Class A redeemable common stock purchase
warrants (the "Warrants"), each Warrant exercisable to purchase one share of
Common Stock at an initial exercise price of $4.50 per share (the "Redeemable
Warrant Exercise Price"). This Underwriter's Warrant (the "Underwriter's
Warrant") is one of a series of Underwriter's Warrants to purchase, in the
aggregate, up to 150,000 Units issued pursuant to an Underwriting Agreement
dated ___________, 1997, among the Company and Maidstone Financial, Inc. (the
"Underwriter"), in connection with a public offering, through the Underwriter,
of 1,500,000 Units as therein described (and up to 225,000 additional Units
covered by an over-allotment option granted by the Company to the Underwriter,
hereinafter referred to together with the 1,500,000 Units, as the "Public
Units") and in consideration of $10.00 received by the Company for the
Underwriter's Warrants. Each Public Unit consists of one share of Common Stock
and two redeemable common stock purchase warrants each to purchase one share of
common stock (the "Public Warrants"). Except as specifically otherwise provided
herein, the Units, as well as the shares of Common Stock and Redeemable Warrants
included in the Units issuable pursuant to the Underwriter's Warrant shall have
the same terms and conditions as the Public Units, the Common Stock and the
Public Warrants, respectively, as described under the caption "Description of
Securities" in the Company's Registration Statement on Form SB-2, File No.
33-_______ (the "Registration Statement"), except that the Holders shall have
registration rights under the Securities Act of 1933, as amended (the "Act"),
for the Underwriter's Warrant, the Common Stock and Redeemable Warrants included
in the Units, and the Common Stock purchasable upon exercise of the Redeemable
Warrants, as more fully described in paragraph 6 herein.
1. The rights represented by the Underwriter's Warrant shall be
exercised at the price, subject to adjustment in accordance with paragraph 8
hereof, and during the periods as follows:
(a) During the period from the date hereof to ___________,
1998 (the "First Anniversary Date"), inclusive, the Holders
shall have no right to purchase any Units hereunder, except
that in the event of any merger, consolidation or sale of
substantially all the assets of the Company as an entirety
prior to the First Anniversary Date, the Holders shall have
the right to exercise the Underwriter's Warrant at such time
and into the kind and amount of shares of stock and other
securities and property (including cash) receivable by a
holder of the number of shares of Common Stock and
Redeemable Warrants into which the Underwriter's Warrant
might have been exercisable immediately prior thereto.
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(b) Between __________, 1998 and ___________, 2002 (the
"Expiration Date") inclusive, the Holders shall have the option
to purchase Units hereunder at a price of $5.04 per Unit (120% of
the initial public offering price), subject to adjustment as
provided in paragraph 8 hereof.
(c) After the Expiration Date, the Holders shall have no right
to purchase any Units hereunder.
2. (a) The rights represented by the Underwriter's Warrant may be
exercised at any time within the periods above specified, in whole or in part,
by (i) the surrender of the Underwriter's Warrant (with the purchase form at the
end hereof properly executed) at the principal executive office of the Company
(or such other office or agency of the Company as it may designate by notice in
writing to the Holders at the addresses of the Holders appearing on the books of
the Company); (ii) payment to the Company of the exercise price then in effect
for the number of Units specified in the above-mentioned purchase form together
with applicable stock transfer taxes, if any; and (iii) delivery to the Company
of a duly executed agreement signed by the person(s) designated in the purchase
form to the effect that such person(s) agree(s) to be bound by the provisions of
paragraph 6 and subparagraphs (b), (c) and (d) of paragraph 7 hereof. The
Underwriter's Warrant shall be deemed to have been exercised, in whole or in
part to the extent specified, immediately prior to the close of business on the
date the Underwriter's Warrant is surrendered and payment is made in accordance
with the foregoing provisions of this paragraph 2, and the person or persons in
whose name or names the certificates for shares of Common Stock and Redeemable
Warrants shall be issuable upon such exercise shall become the holder or holders
of record of such Common Stock and Redeemable Warrants at that time and date.
Certificates representing the Common Stock and Redeemable Warrants so purchased
shall be delivered to the Holders within a reasonable time, not exceeding ten
(10) days, after the rights represented by this Warrant shall have been so
exercised.
(b) Notwithstanding anything to the contrary contained in
subparagraph (a) of paragraph 2, the Holders may elect to exercise this
Underwriter's Warrant in whole or in part by receiving Units equal to the value
(as determined below) of this Underwriter's Warrant at the principal office of
the Company together with notice of such election in which event the Company
shall issue to the Holders a number of Units computed using the following
formula:
X = Y(A-B)
-----
A
Where: X = the number of Units to be issued to the Holders;
Y = the number of Units to be exercised under this Underwriter's
Warrant;
A = the current fair market value of one share of Common Stock
(calculated as described below); and
B = the Exercise Price.
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As used herein, the current fair market value of Common Stock shall
mean the greater of (x) the average of the closing prices of the Company's
Common Stock sold on all securities exchanges on which the Common Stock may at
the time be listed and the NASDAQ National Market, or, if there have been no
sales on any such exchange or the NASDAQ National Market on such day, the
average of the highest bid and lowest asked price on such day on The Nasdaq
SmallCap Market or otherwise in the domestic over-the-counter market as reported
by the National Quotation Bureau, Incorporated, or any similar successor
organization (the "Market Price"), on the trading day immediately preceding the
date notice of exercise of this Underwriter's Warrant is given or (y) the
average of the Market Price per share of Common Stock for the five trading days
immediately preceding the date notice of exercise of this Underwriter's Warrant
is given. If on any date for which the Market Price per share of Common Stock is
to be determined the Common Stock is not listed on any securities exchange or
quoted on the NASDAQ National Market or on The Nasdaq SmallCap Market or
otherwise in the over-the-counter market, the Market Price per share of Common
Stock shall be the highest price per share which the Company could then obtain
from a willing buyer (not a current employee or director) for shares of Common
Stock sold by the Company, from authorized but unissued shares, as determined in
good faith by the Board of Directors of the Company, unless prior to such date
the Company has become subject to a merger, acquisition or other consolidation
pursuant to which the Company is not the surviving party, in which case the
Market Price per share of Common Stock shall be deemed to be the value received
by the holders of the Company's Common Stock for each share thereof pursuant to
the Company's acquisition.
3. The Underwriter's Warrant and the securities issuable upon
exercise thereof shall not be transferred, sold, assigned, or hypothecated for a
period of one year commencing on the Effective Date except that it may be
transferred to successors of the Holders, and may be assigned in whole or in
part to any person who is an officer of either of the Holders or to any member
of the selling group and/or the officers or partners thereof during such period.
In the event that the Underwriter's Warrant is transferred after one year from
the Effective Date, it must be exercised immediately upon such transfer and, if
not exercised immediately upon transfer, the Underwriter's Warrant shall lapse.
Any such assignment shall be effected by the Holders by (i) executing the form
of assignment at the end hereof and (ii) surrendering the Underwriter's Warrant
for cancellation at the office or agency of the Company referred to in paragraph
2 hereof, accompanied by a certificate (signed by an officer of each of the
Holders if the Holders are corporations), stating that each transferee is a
permitted transferee under this paragraph 3; whereupon the Company shall issue,
in the name or names specified by the Holders (including the Holders) a new
Underwriter's Warrant or Warrants of like tenor and representing in the
aggregate rights to purchase the same number of Units (consisting of the same
number of shares of Common Stock and Redeemable Warrants) as are purchasable
hereunder.
4. The Company covenants and agrees that all shares of Common Stock
which may be purchased hereunder or upon exercise of the Redeemable Warrants
will, upon issuance against payment of the purchase price therefor, be duly and
validly issued, fully paid and nonassessable, and no personal liability will
attach to the holder thereof. The Company further
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covenants and agrees that, during the periods within which the Underwriter's
Warrant may be exercised, the Company will at all times have authorized and
reserved a sufficient number of shares of its Common Stock to provide for the
exercise of the Underwriter's Warrant and the Redeemable Warrants.
5. The Underwriter's Warrant shall not entitle the Holders to any
voting rights or other rights as stockholders of the Company.
6. (a) (i) The Company shall advise the Holders or its
transferees, whether the Holders hold the Underwriter's Warrant or have
exercised the Underwriter's Warrant and hold shares of Common Stock and/or
Redeemable Warrants by written notice at least four weeks prior to the filing of
any post-effective amendment to the Registration Statement or of any new
registration statement or post-effective amendment thereto under the Act
covering any securities of the Company, for its own account or for the account
of others, except for any registration statement filed on Form S-4 or S-8, and
will, for a period of seven years from the Effective Date, upon the request of
the Holders, and subject to subparagraph (a)(ii) of this paragraph 6, include in
any such post-effective amendment to the Registration Statement or in any new
registration statement such information as may be required to permit a public
offering of the Underwriter's Warrant, the Common Stock issuable upon the
exercise thereof or upon exercise of the Redeemable Warrants or the Redeemable
Warrants (collectively, the "Registrable Securities"). The Company shall supply
prospectuses and such other document as the Holders may reasonably request in
order to facilitate the public sale or other disposition of the Registrable
Securities, use its best efforts to register and qualify any of the Registrable
Securities for sale in such states as such Holders designate and do any and all
other acts and things which may be necessary or desirable to enable such Holders
to consummate the public sale or other disposition of the Registrable
Securities, all at no expense to the Holders or the Underwriter, and furnish
indemnification in the manner provided in paragraph 7 hereof. The Holders shall
furnish information and indemnification as set forth in paragraph 7.
(ii) If the registration of which the Company gives notice is for
a registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to
subparagraph (a)(i) of this paragraph 6. If the managing underwriter determines
that a limitation of the number of shares to be underwritten is required, the
underwriter may exclude some or all Registrable Securities from such
registration (the "Excluded Registrable Securities"); provided, however, that no
other security-holder may include any such securities in such Registration
Statement if any of the Registrable Securities have been excluded from such
registration; and further provided that the Company will file a new Registration
Statement covering the Excluded Registrable Securities, at the Company's
expense, within six months after the completion of such underwritten offering.
(b) If any 50% Holder (as defined below) shall give notice to the
Company at any time to the effect that such Holder desires to register under the
Act any or all of the Registrable Securities under such circumstances that a
public distribution (within the meaning of the Act) of any such securities will
be involved, then the Company will promptly, but no later than four weeks after
receipt of such notice, file a post-effective amendment to the current
Registration Statement or a new registration statement pursuant to the Act, so
that such
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designated Registrable Securities may be publicly sold under the Act as
promptly as practicable thereafter and the Company will use its best efforts to
cause such registration to become and remain effective (including the taking of
such steps as are necessary to obtain the removal of any stop order) within 90
days after the receipt of such notice, provided, that such Holder shall furnish
the Company with appropriate information in connection therewith as the Company
may reasonably request in writing. The 50% Holder may, at its option, request
the filing of a post-effective amendment to the current Registration Statement
or a new registration statement under the Act on two occasions during the
four-year period beginning one year from the Effective Date. The 50% Holder
may, at its option, request the registration of the Underwriter's Warrant
and/or any of the securities underlying the Underwriter's Warrant in a
registration statement made by the Company as contemplated by subparagraph (a)
of this paragraph 6 or in connection with a request made pursuant to this
subparagraph (b) of paragraph 6 prior to acquisition of the shares of Common
Stock and Redeemable Warrants issuable upon exercise of the Underwriter's
Warrant. The 50% Holder may, at its option, request such post-effective
amendment or new registration statement during the described period with
respect to the Underwriter's Warrant, or separately as to the Common Stock and
Redeemable Warrants issuable upon the exercise of the Underwriter's Warrant,
and such registration rights may be exercised by the 50% Holder prior to or
subsequent to the exercise of the Warrant. Within ten days after receiving any
such notice pursuant to this subparagraph (b) of paragraph 6, the Company shall
give notice to any other Holders of the Underwriter's Warrant, advising that
the Company is proceeding with such post-effective amendment or registration
statement and offering to include therein the securities underlying that part
of the Warrant held by the other Holders, provided that they shall furnish the
Company with such appropriate information (relating to the intentions of such
Holders) in connection therewith as the Company shall reasonably request in
writing. All costs and expenses of the first post-effective amendment or new
registration statement shall be borne by the Company, except that the Holder(s)
shall bear the fees of their own counsel and any underwriting discounts or
commissions applicable to any of the securities sold by them. All costs and
expenses of the second such post-effective amendment or new registration
statement shall be borne by the Holder(s). The Company will maintain such
registration statement or post-effective amendment current under the Act for a
period of at least six months (and for up to an additional three months if
requested by the Holder(s)) from the effective date thereof. The Company shall
provide prospectuses, and such other documents as the Holder(s) may request in
order to facilitate the public sale or other disposition of the Registrable
Securities, use its best efforts to register and qualify any of the Registrable
Securities for sale in such states as such Holder(s) designate and furnish
indemnification in the manner provided in paragraph 7 hereof.
(c) The term "50% Holder" as used in this paragraph 6 shall mean
the Holder(s) of at least 50% of the Underwriter's Warrant and/or the Common
Stock underlying the Underwriter's Warrant and the Redeemable Warrants and shall
include any owner or combination of owners of such securities, which ownership
shall be calculated by determining the number of shares of Common Stock held by
such owner or owners as well as the number of shares then issuable upon exercise
of the Underwriter's Warrant and the Redeemable Warrants.
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(d) If at any time prior to the effectiveness of the
registration statement filed in connection with an offering pursuant to this
paragraph 6 the 50% Holder shall determine not to proceed with the registration,
upon notice to the Company and the payment to the Company by the 50% Holder of
the Company's expenses, if any, theretofore incurred in connection with the
registration statement, the 50% Holder may terminate its participation in the
offering, and the registration statement previously filed shall not be counted
against the number of demand registrations permitted under this paragraph 6.
The 50% Holder need not pay to the Company its expenses incurred in connection
with the registration statement, however, if such 50% Holder shall have
determined not to proceed because of material adverse developments on the part
of the Company of which such 50% Holder obtained knowledge subsequent to the
giving to the Company of the written request to register Registrable Securities
pursuant to this paragraph 6.
(e) Notwithstanding the foregoing, if the Company shall furnish
to such 50% Holder a certificate signed by the President of the Company stating
that in the good faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its stockholders for a registration statement to
be filed in the near future containing the disclosure of material information
required to be included therein by reason of the federal securities laws, then
the Company's obligation to use its best efforts to file a registration
statement shall be deferred for a period during which such disclosure would be
seriously detrimental, provided that this period will not exceed 30 days and
provided further, that the Company shall not defer its obligation in this matter
more than once in any 12 month period.
7. (a) Whenever pursuant to paragraph 6 a registration statement
relating to the Underwriter's Warrant or any Common Stock issued or issuable
upon the exercise of the Underwriter's Warrant or the Redeemable Warrants, or
any Redeemable Warrants is filed under the Act, amended or supplemented, the
Company will indemnify and hold harmless each Holder of the securities covered
by such registration statement, amendment or supplement (such Holder being
hereinafter called the "Distributing Holder"), and each person, if any, who
controls (within the meaning of the Act) the Distributing Holder, and each
underwriter (within the meaning of the Act) of such securities and each person,
if any, who controls (within the meaning of the Act) any such underwriter,
against any losses, claims, damages or liabilities, joint or several, to which
the Distributing Holder, any such controlling person or any such underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities, or actions in respect thereof, arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any such registration statement or any preliminary prospectus or
final prospectus constituting a part thereof or any amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading and will reimburse the Distributing
Holder or such controlling person or underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim,
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damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in said
registration statement, said preliminary prospectus, said final prospectus or
said amendment or supplement in reliance upon and in conformity with written
information furnished by such Distributing Holder or any other Distributing
Holder for use in the preparation thereof.
(b) The Distributing Holder will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed said
registration statement and such amendments and supplements thereto, and each
person, if any, who controls the Company (within the meaning of the Act) against
any losses, claims, damages or liabilities, joint or several, to which the
Company or any such director, officer or controlling person may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities, or actions in respect thereof, arise out of or are based upon any
untrue or alleged untrue statement of any material fact contained in said
registration statement, said preliminary prospectus, said final prospectus, or
said amendment or supplement, or arises out of or are based upon the omission or
the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in said registration statement,
said preliminary prospectus, said final prospectus or said amendment or
supplement in reliance upon and in conformity with written information furnished
by such Distributing Holder for use in the preparation thereof; and will
reimburse the Company or any such director, officer or controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under this
paragraph 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying
party, give the indemnifying party notice of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
paragraph 7.
(d) In case any such action is brought against any indemnified
party, and it notified an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in and, to the extent that it
may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
paragraph 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
8. The Exercise Price in effect at any time and the number and kind
of securities purchasable upon the exercise of each Warrant shall be subject to
adjustment from time to time upon the happening of certain events hereinafter
described; provided, however, that no adjustment shall be required in respect of
the Redeemable Warrants.
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(a) In case the Company shall (i) declare a dividend or make a
distribution on its outstanding shares of Common Stock in shares of Common
Stock, (ii) subdivide or reclassify its outstanding shares of Common Stock into
a greater number of shares, or (iii) combine or reclassify its outstanding
shares of Common Stock into a smaller number of shares, or (iv) the outstanding
shares of Common Stock of the Company are at any time changed into or exchanged
for a different number or kind of shares or other security of the Company or of
another corporation through reorganization, merger, consolidation, liquidation
or recapitalization, then appropriate adjustments in the number and kind of such
securities subject to this Warrant shall be made and the Exercise Price in
effect at the time of the record date for such dividend or distribution or of
the effective date of such subdivision, combination, reclassification,
reorganization, merger, consolidation, liquidation or recapitalization shall be
proportionately adjusted so that the Holders of this Warrant exercised after
such date shall be entitled to receive the aggregate number and kind of
securities which, if this Warrant had been exercised by such Holders immediately
prior to such date, they would have owned upon such exercise and been entitled
to receive upon such dividend, distribution, subdivision, combination,
reclassification, reorganization, merger, consolidation, liquidation or
recapitalization. For example, if the Company declares a 2 for 1 stock
distribution and the Exercise Price immediately prior to such event was $5.04
per Unit [120% of the initial public offering price of the Public Units] and the
number of Units purchasable upon exercise of this Warrant was 150,000, the
adjusted Exercise Price immediately after such event would be $2.52 per Unit and
the adjusted number of Units purchasable upon exercise of this Warrant would be
300,000. Such adjustment shall be made successively whenever any event listed
above shall occur.
(b) In case the Company shall hereafter distribute without
consideration to all holders of its Common Stock evidence of its indebtedness or
assets (excluding cash dividends or distributions and dividends or distributions
referred to in subparagraph (a) of this paragraph 8, or subscription rights or
warrants, then in each such case the Exercise Price in effect thereafter shall
be determined by multiplying the number of Units issuable upon exercise of the
Underwriter's Warrant by the Exercise Price in effect immediately prior thereto,
multiplied by a fraction, the numerator of which shall be the total number of
shares of Common Stock then outstanding multiplied by the current Exercise
Price, less the fair market value (as determined by the Company's Board of
Directors) of said assets, or evidence of indebtedness so distributed or of such
rights or warrants, and the denominator of which shall be the total number of
shares of Common Stock outstanding multiplied by the current Exercise Price.
Such adjustment shall be made whenever any such distribution is made and shall
become effective immediately after the record date for the determination of
stockholders entitled to receive such distribution.
(c) In case the Company shall issue shares of its Common Stock
[excluding shares issued (i) in any of the transactions described in
subparagraphs(a) or (b) of this paragraph 8; (ii) as part of the Public Units,
(iii) upon conversion or exchange of securities convertible into or exchangeable
for Common Stock, (iv) upon exercise of options granted under the Company's
Stock Option Plan, as amended to date, if such shares would otherwise be
included in this subsection (c), (v) upon exercise of the Underwriter's Warrant
or the Public Warrants or the Units or (vi) upon exercise of rights or warrants
issued to the holders of the Common Stock, but only if no adjustment is required
pursuant to this paragraph 8 (without regard to subsection (g) of this paragraph
8) with respect to the transaction giving rise to such rights]
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for a consideration per share less than the current Redeemable Warrant Exercise
Price on the date the Company fixes the offering price of such additional
shares, the Exercise Price shall be adjusted immediately thereafter so that it
shall equal the price determined by multiplying the Exercise Price in effect
immediately prior thereto by a fraction, of which the numerator shall be the
total number of shares of Common Stock outstanding immediately prior to the
issuance of such additional shares plus the number of shares of Common Stock
which the aggregate consideration received (determined as provided in
subparagraph (f) of this paragraph 8) for the issuance of such additional
shares would purchase at the current Redeemable Warrant Exercise Price, and of
which the denominator shall be the number of shares of Common Stock outstanding
immediately after the issuance of such additional shares. Such adjustment
shall be made successively whenever such an issuance is made.
(d) In case the Company shall issue any securities convertible
into or exchangeable for its Common Stock (excluding securities issued in
transactions described in subparagraph (b) of paragraph 8) for a consideration
per share of Common Stock initially deliverable upon conversion or exchange of
such securities (determined as provided in subparagraph (f) of paragraph 8) less
than the current Redeemable Warrant Exercise Price in effect immediately prior
to the issuance of such securities, the Exercise Price shall be adjusted
immediately thereafter so that it shall equal the price determined by
multiplying the Exercise Price in effect immediately prior thereto by a
fraction, of which the numerator shall be the number of shares of Common Stock
outstanding immediately prior to the issuance of such securities plus the number
of shares of Common Stock which the aggregate consideration received (determined
as provided in subparagraph (f) of paragraph 8) for such securities would
purchase at the current Redeemable Warrant Exercise Price, and of which the
denominator shall be the number of shares of Common Stock outstanding
immediately prior to such issuance plus the maximum number of shares of Common
Stock of the Company deliverable upon conversion of or in exchange for such
securities at the initial conversion or exchange price or rate. Such adjustment
shall be made successively whenever such an issuance is made.
(e) Whenever the Exercise Price payable upon exercise of the
Underwriter's Warrant is adjusted pursuant to subparagraphs (a), (b), (c) or (d)
of paragraph 8, the number of shares of Common Stock purchasable upon exercise
of this Underwriter's Warrant shall simultaneously be adjusted by multiplying
the number of shares of Common Stock issuable upon exercise of this
Underwriter's Warrant by the Exercise Price in effect on the date hereof and
dividing the product so obtained by the Exercise Price, as adjusted.
(f) For purposes of any computation respecting consideration
received pursuant to subparagraphs (c) and (d) of paragraph 8, the following
shall apply:
(i) in the case of the issuance of shares of Common Stock
for cash, the consideration shall be the amount of such cash,
provided that in no case shall any deduction be made for any
commissions, discounts or other expenses incurred by the Company
for any underwriting of the issue or otherwise in connection
therewith;
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(ii) in the case of the issuance of shares of Common Stock
for a consideration in whole or in part other than cash, the
consideration other than cash shall be deemed to be the fair
market value thereof as determined in good faith by the Board of
Directors of the Company (irrespective of the accounting
treatment thereof), whose determination shall be conclusive; and
(iii) in the case of the issuance of securities convertible
into or exchangeable for shares of Common Stock, the aggregate
consideration received therefor shall be deemed to be the
consideration received by the Company for the issuance of such
securities plus the additional minimum consideration, if any, to
be received by the Company upon the conversion or exchange
thereof (the consideration in each case to be determined in the
same manner as provided in clauses (i) and (ii) of this
subparagraph (f) of paragraph 8.
(g) No adjustment in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at least five cents
($0.05) in such price; provided, however, that any adjustments which by reason
of this subparagraph (g) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment required to be made
hereunder. All calculations under this paragraph 8 shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be. Anything
in this Section 8 to the contrary notwithstanding, the Company shall be
entitled, but shall not be required, to make such changes in the Exercise Price,
in addition to those required by this Section 8, as it shall determine, in its
sole discretion, to be advisable in order that any dividend or distribution in
shares of Common Stock, or any subdivision, reclassification or combination of
Common Stock, hereafter made by the Company shall not result in any federal
income tax liability to the holders of Common Stock or securities convertible
into Common Stock (including the Redeemable Warrants issuable upon exercise of
the Underwriter's Warrant).
(h) Whenever the Exercise Price is adjusted, as herein provided,
the Company shall promptly cause a notice setting forth the adjusted Exercise
Price and adjusted number of shares of Common Stock or other securities
purchasable upon exercise of the Underwriter's Warrant to be mailed to the
Holders, at their addresses set forth herein, and shall cause a certified copy
thereof to be mailed to the Company's transfer agent, if any. The Company may
retain a firm of independent certified public accountants selected by the Board
of Directors (who may be the regular accountants employed by the Company) to
make any computation required by this paragraph 8, and a certificate signed by
such firm shall be conclusive evidence of the correctness of such adjustment.
(i) In the event that at any time, as a result of an adjustment
made pursuant to the provisions of this paragraph 8, the Holders of the
Underwriter's Warrant thereafter shall become entitled to receive any securities
of the Company, other than Common Stock and the Redeemable Warrants included in
the Units, thereafter the number of such other securities so receivable upon
exercise of the Underwriter's Warrant shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to the
provisions with
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respect to the Common Stock contained in subparagraphs (a) to (g), inclusive of
this paragraph (i).
9. This Agreement shall be governed by and in accordance with the
laws of the State of New York.
IN WITNESS WHEREOF, ROCKWELL MEDICAL TECHNOLOGIES, INC. has caused
this Underwriter's Warrant to be signed by its duly authorized officers, and
this Underwriter's Warrant to be dated __________________, 1997.
ROCKWELL MEDICAL TECHNOLOGIES, INC.
By: ______________________________________
Name:
Title:
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PURCHASE FORM
(To be signed only upon exercise of Warrant)
The undersigned, the holder of the foregoing Underwriter's Warrant,
hereby irrevocably elects to exercise the purchase rights represented by such
Warrant for, and to purchase thereunder, ______________ Units of ROCKWELL
MEDICAL TECHNOLOGIES, INC., each Unit consisting of one (1) share of Common
Stock, no par value per share, and two (2) Redeemable Common Stock Purchase
Warrants each to purchase one (1) share of Common Stock, and herewith makes
payment of $_____________________ therefor (or hereby surrenders and delivers
that portion of the Underwriter's Warrant having equivalent value (as determined
in accordance with the provisions of subparagraph (d) of paragraph 2 of the
Underwriter's Warrant)), and requests that the certificates for shares of Common
Stock and Redeemable Warrants be issued in the name(s) of, and delivered to
_____________________, whose address(es) is (are):
Dated: _________________________, 19_________
______________________________________________
Signature
(Print name under signature)
(Signature must conform in all respects to the
name of holder as specified on the face of the
Underwriter's Warrant).
===============================================
(Insert Social Security or Other
Identifying Number of Holder)
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Warrant)
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FOR VALUE RECEIVED __________________________________________________
hereby sells, assigns and transfers unto_______________________________________
(Please print name and address of transferee)
this Warrant, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint __________________________
_____________________ Attorney, to transfer the within Warrant on the books of
ROCKWELL MEDICAL TECHNOLOGIES, INC., with full power of substitution.
Dated: ________________________
Signature _____________________
(Print name under signature)
(Signature must conform in all
respects to the name of holder as
specified on the face of the
Underwriter's Warrant).
================================
(Insert Social Security or Other
Identifying Number of Holders)
