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EXHIBIT 4.3
WARRANT AGREEMENT
BY AND BETWEEN
WOMEN FIRST HEALTHCARE, INC.
AND
GRUNTAL & CO., L.L.C.
DATED AS OF AUGUST 8, 2001
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WARRANT AGREEMENT
WARRANT AGREEMENT dated as of August 8, 2001 by and between WOMEN FIRST
HEALTHCARE, INC., a Delaware corporation (the "Company"), and GRUNTAL & CO.,
L.L.C., as placement agent for the Offering (the "Agent") (the Company and the
Agent are referred to collectively herein as the "Parties").
The Company proposes to issue to the Agent warrants as hereinafter
described (the "Warrants") to purchase up to an aggregate of 200,000 shares of
the Company's Common Stock, $0.001 par value per share (the "Common Stock"),
subject to adjustment as provided in Section 8 hereof (such 200,000 shares, as
adjusted, being hereinafter referred to as the "Shares"). Each warrant entitles
the holder ("Holder") thereof to purchase one share of Common Stock. All
capitalized terms used herein and not otherwise defined herein shall have the
same meanings as in that certain underwriting agreement, of even date herewith,
by and between the Company and the Agent (the "Placement Agent Agreement").
NOW, THEREFORE, in consideration of the following promises and mutual
agreements and for other good and valuable consideration, the Parties agree as
follows:
1. ISSUANCE OF WARRANTS; FORM OF WARRANT. On the Closing Date the
Company will issue, sell and deliver the Warrants to the Agent or its bona fide
officers and employees for an aggregate price of $100. The Warrants shall be
issued to the Agent or such designees in the amounts set forth on Schedule I
attached hereto. The form of the Warrant and the Form of Election to Purchase
attached thereto shall be substantially as set forth on Exhibit A attached
hereto. The Warrants shall be executed on behalf of the Company by the manual or
facsimile signature of the present or any future President or any Vice President
of the Company, under its corporate seal, affixed or in facsimile, and attested
by the manual or facsimile signature of the present or any future Secretary or
Assistant Secretary of the Company. The Agent and each other Holder, severally
and not jointly, represents and warrants to the Company that (i) such Holder is
acquiring the Warrants, and any Shares acquired upon exercise of any Warrants,
for such Holder's own account and not with a view to, or for sale in connection
with, any distribution of the Warrants or any shares of Common Stock, unless
such distribution is registered or exempt from registration under the Securities
Act of 1933, as amended (the "Act"), and any applicable state and foreign
securities or blue sky laws and (ii) such Holder is aware that the Warrants and
the Shares have not been registered under the Act or the securities or blue sky
laws of any state or other jurisdiction, and that the Warrants may not be
exercised and the Warrants and the Shares may not be resold (and the Holder
covenants not to resell them) unless they are registered under applicable
federal and state securities laws or unless exemptions from all such applicable
registration requirements are available, and that the Warrants and the Shares
will be legended to indicate the foregoing restrictions.
2. REGISTRATION. The Warrants shall be numbered and shall be registered
in a Warrant register (the "Warrant Register"). The Company shall be entitled to
treat the registered holder of any Warrant on the Warrant Register as the owner
in fact thereof for all purposes and shall not be bound to recognize any
equitable or other claim to or interest in such
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Warrant on the part of any other person, and shall not be liable for any
registration or transfer of Warrants that are registered or are to be registered
in the name of a fiduciary or the nominee of a fiduciary. The Warrants shall be
registered initially in the name of the Agent in such denominations as the Agent
may request in writing from the Company; provided, however, that the Agent may
designate that all or a portion of the Warrants be issued in varying amounts
directly to its affiliates or bona fide officers and employees and not to the
Agent.
3. TRANSFER OF WARRANTS. The Warrants may only be sold, transferred,
assigned or hypothecated, to bona fide officers and employees of the Agent upon
written request to the Company (including a certificate of the Holder that the
transferee is a permitted transferee under this Section 3) delivered in
accordance with Section 12 hereof and upon delivery of the Warrant Certificate
to the Company with the form of assignment at the end thereof duly endorsed by
the Holder or by its duly authorized attorney or representative. In all cases of
transfer by an attorney, the original power of attorney, duly approved, or an
official copy thereof, duly certified, shall be deposited with the Company. In
case of transfer by executors, administrators, guardians or other legal
representatives, duly authenticated evidence of their authority shall be
produced and may be required to be deposited with the Company in its discretion.
Upon any registration of transfer, the Company shall deliver a new Warrant or
Warrants to the persons entitled thereto. Upon surrender of the Warrants to the
Company or its duly authorized agent, any of the Warrants may be exchanged at
the option of its Holder for other Warrants of different denominations, of like
tenor and representing in the aggregate the right to purchase a like number of
shares of Common Stock. The Company may require payment of a sum sufficient to
cover all taxes and other governmental charges that may be imposed in connection
with any transfer, exchange or other disposition of the Warrants or Shares.
However, the Company shall have no obligation to cause Warrants or Shares to be
transferred on its books to any person, if such transfer would violate the Act,
the rules and regulations promulgated thereunder (the "Rules and Regulations")
or applicable state securities laws, rules and regulations.
4. TERM OF WARRANTS; EXERCISE OF WARRANTS.
(a) TERM OF WARRANTS. Each Warrant entitles the registered owner
thereof to purchase one fully paid and nonassessable Share at a purchase price
of $3.50 per Share (as adjusted from time to time pursuant to the provisions
hereof, the "Exercise Price") at any time until 5:00 p.m., New York City time,
on August 8, 2006 (the "Warrant Expiration Date").
(b) EXERCISE OF WARRANTS. The Exercise Price and the Shares
issuable upon exercise of Warrants are subject to adjustment upon the occurrence
of certain events, pursuant to the provisions of Section 8 of this Agreement.
Subject to the provisions of this Agreement, and in addition to the right to
surrender Warrants without any cash payment as set forth in subsection (c)
below, each Holder shall have the right to purchase from the Company the number
of fully-paid and nonassessable Shares specified in such Warrants, upon (i)
surrender to the Company, or its duly authorized agent, of such Warrants, with
the Form of Election to Purchase attached thereto duly completed and signed,
with signatures guaranteed by a member firm of a national securities exchange, a
commercial bank (not a savings bank or savings and
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loan association) or trust company located in the United States or a member of
the NASD, (ii) payment to the Company of the Exercise Price, as adjusted in
accordance with the provisions of Section 8 of this Agreement, for the number of
Shares in respect of which such Warrants are then exercised and (iii) compliance
with the requirements of the Act, the Rules and Regulations and applicable state
securities laws, rules and regulations (clauses (i), (ii) and (iii) above are
hereinafter collectively referred to as the "Exercise Requirements"). No
adjustment shall be made for any cash dividends paid to stockholders of record
before the date on which the Warrants are exercised. Upon completion of the
Exercise Requirements, the Company shall issue and cause to be delivered, no
later than three (3) trading days following such surrender, to the Holders or
(subject to Section 3) to such person or persons and in such name or names as
such Holder may designate, a certificate or certificates for the number of full
Shares so purchased upon the exercise of such Warrants, together with cash, in
respect of any fractional Shares otherwise issuable upon such surrender, as
provided in Section 9 of this Agreement. Such certificate or certificates shall
be deemed to have been issued and any person so named therein shall be deemed to
have become a holder of record of such Shares as of the date of the completion
of the Exercise Requirements; provided, however, that if, at the date of
surrender of such Warrants, the transfer books for the shares of Common Stock or
other class of securities issuable upon the exercise of such Warrants shall be
closed, the certificates for the Shares shall be issuable as of the date such
books shall next be opened (whether before, on or after the Warrant Expiration
Date) and until such date the Company shall be under no duty to deliver any
certificate for such Shares; provided further, however, that the transfer books
of record, unless otherwise required by law, shall not be closed at any one time
for a period longer than twenty (20) days. The rights of purchase represented by
the Warrants shall be exercisable, at the election of the Holder(s) thereof,
either in full or, from time to time, in part and, if any Warrant is exercised
in respect of less than all of the Shares issuable upon such exercise at any
time prior to the Warrant Expiration Date, a new Warrant or Warrants will be
issued for the remaining number of Shares specified in the Warrant so
surrendered.
(c) PAYMENT OF EXERCISE PRICE. Payment of the Exercise Price may
be made in cash, by wire transfer of immediately available funds or by certified
or official bank check payable to the order of the Company. In addition and in
lieu of any cash payment, the Holder of the Warrants shall have the right at any
time, and from time to time, to exercise the Warrants in full or in part by
surrendering the Warrants in exchange for the number of Shares equal to the
product of (x) the number of shares as to which the Warrants are being exercised
multiplied by (y) a fraction, the numerator of which is the Market Price (as
defined in Section 8(d) below) of the Shares less the Exercise Price and the
denominator of which is such Market Price.
5. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes,
if any, attributable to the issuance of Shares upon the exercise of Warrants;
provided, however, that the Company shall not be required to pay any taxes
payable in connection with the transfer of any certificates for Shares in a name
other than that of the Holder of Warrants in respect of which such Shares are
issued, which taxes shall be paid by the Holder.
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6. MUTILATED OR MISSING WARRANTS. In the event any of the Warrants are
mutilated, lost, stolen or destroyed, the Company shall issue and deliver (i) in
exchange for and upon cancellation of the mutilated Warrant, or (ii) in lieu of
and substitution for the lost, stolen or destroyed Warrant, a new Warrant of
like tenor representing an equivalent right or interest; provided, however, that
the Company shall not be required to issue such substitute Warrant unless it
receives evidence reasonably satisfactory to the Company of ownership of such
Warrant and of such mutilation, loss, theft or destruction of such Warrant and
indemnity and affidavit of loss, if requested, reasonably satisfactory to the
Company. An applicant for such substitute Warrant shall also comply with such
other reasonable regulations and pay such other reasonable charges and expenses
as the Company may prescribe.
7. RESERVATION OF SHARES, ETC. The Company has reserved, and shall at
all times keep reserved, out of the authorized and unissued shares of Common
Stock, a number of shares of Common Stock sufficient to provide for the exercise
of the Warrants. The Company's transfer agent for the Common Stock, and any
subsequent transfer agent for the Company's securities issuable upon the
exercise of the Warrants (the "Transfer Agent") will be irrevocably authorized
and directed at all times until the Warrant Expiration Date to reserve such
number of authorized and unissued shares as shall be required for such purpose.
The Company will keep a copy of this Agreement on file with the Transfer Agent.
The Company will supply the Transfer Agent with duly executed certificates for
such purpose and will itself provide or make available any cash distributable as
provided in Section 9 of this Agreement. All Warrants surrendered upon exercise
in compliance with this Agreement shall be canceled, and such canceled Warrants
shall constitute sufficient evidence of the number of Shares that are issuable
upon the exercise of such Warrants. No shares of Common Stock shall be subject
to reservation in respect of unexercised Warrants after the Warrant Expiration
Date.
8. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF SHARES. The Exercise
Price and the number and kind of securities issuable upon exercise of each
Warrant shall be subject to adjustment from time to time upon the happening of
certain events, as follows:
(a) If the Company (i) declares a dividend on its Common Stock in
shares of Common Stock or makes a distribution to all holders of its Common
Stock in shares of Common Stock without charge to such holders, (ii) subdivides
its outstanding shares of Common Stock, (iii) combines its outstanding shares of
Common Stock into a smaller number of shares of Common Stock or (iv) issues by
reclassification of its Common Stock other securities of the Company (including
any such reclassification in connection with a consolidation or merger in which
the Company is the surviving entity, but excluding those referred to in
paragraph (b) below), the number and kind of Common Stock purchasable upon
exercise of each Warrant immediately prior thereto shall be adjusted so that the
Holder of each Warrant shall be entitled to receive the kind and number of
shares of Common Stock or other securities of the Company which such Holder
would have owned or have been entitled to receive after the happening of any of
the events described above, had such Warrant been exercised immediately prior to
such event or any record date with respect thereto. Any adjustment made pursuant
to this paragraph (a) shall become effective immediately after the
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effective date of such event retroactive to immediately after the record date,
if any, for such event.
(b) If the Company issues rights, options or warrants to all
holders of its Common Stock, without any charge to such holders, entitling them
to subscribe for or to purchase shares of Common Stock at a price per share
lower than the then current Market Price per share of Common Stock (as defined
in paragraph (d) below) at the record date mentioned below, the Holders of
unexercised Warrants as of such record date, upon exercise of such Warrants,
shall receive the same rights, options or warrants that such Holder would have
received or have been entitled to receive after such issuance, had such Warrants
been exercised immediately prior to such issuance or any record date with
respect thereto. Such adjustment shall be made whenever rights, options or
warrants are issued as described above and shall become effective retroactively
to immediately after the record date for the determination of stockholders
entitled to receive such rights, options or warrants.
(c) If the Company distributes to all holders of its Common
Stock, without any charge to such holders, shares of its stock other than shares
of Common Stock or evidences of its indebtedness or assets (excluding cash
dividends and dividends or distributions referred to in paragraph (a) or (b)
above) or rights, options or warrants or other securities convertible into or
exchangeable for shares of Common Stock (excluding those referred to in
paragraph (a) or (b) above), then in each case the Holders of unexercised
Warrants as of the record date mentioned below, upon exercise of such Warrants,
shall receive the same distribution that such Holder would have received or have
been entitled to receive after the distribution, had such Warrants been
exercised immediately prior to the distribution or any record date with respect
thereto. Such adjustment shall be made whenever any such distribution is made as
described above and shall become effective on the date of distribution
retroactive to immediately after the record date for the determination of
stockholders entitled to receive such distribution.
(d) For the purpose of any computation under paragraph (b) of
this Section 8, the current "Market Price" per share of Common Stock at any date
shall be the average of the daily closing prices for fifteen (15) consecutive
trading days commencing two (2) trading days before the date of such
computation. The closing price for each day shall be the last reported sale
price regular way or, if no such reported sale takes place on such day, the
average of the closing bid and asked prices regular way for such day, in either
case on the principal national securities exchange on which the shares are
listed or admitted to trading, or if they are not listed or admitted to trading
on any national securities exchange, but are traded in the over-the-counter
market, the closing sale price of the Common Stock or, if no sale is publicly
reported, the average of the representative closing bid and asked quotations for
the Common Stock on The Nasdaq National or SmallCap Market or any comparable
system, or if the Common Stock is not listed on The Nasdaq Stock Market or a
comparable system, the closing sale price of the Common Stock or, if no sale is
publicly reported, the average of the closing bid and asked prices as furnished
by two members of the NASD selected from time to time by the Company for that
purpose.
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(e) No adjustment in the number of Shares purchasable hereunder
shall be required unless such adjustment would result in an increase or decrease
of at least one percent (1%) in the number of Shares purchasable upon the
exercise of each Warrant; provided, however, that any adjustments which by
reason of this paragraph (e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment but not later than
three (3) years after the happening of the specified event or events. All
calculations shall be made to the nearest one thousandth of a share.
(f) Whenever the number of Shares purchasable upon exercise of
each Warrant is adjusted, as herein provided, the Exercise Price shall be
adjusted by multiplying the Exercise Price in effect immediately prior to such
adjustment by a fraction, of which (i) the numerator shall be the number of
Shares purchasable upon the exercise of each Warrant immediately prior to such
adjustment and (ii) the denominator shall be the number of shares so purchasable
immediately thereafter.
(g) For the purpose of this Section 8, the term "Common Stock"
shall mean (i) the class of stock designated as the Common Stock of the Company
at the date of this Agreement or (ii) any other class of stock resulting from
successive changes or reclassifications of such shares consisting solely of
changes in par value, or from no par value to par value or from par value to no
par value. If at any time, as a result of an adjustment made pursuant to
paragraph (a) above, the Holders become entitled to purchase any shares of
capital stock of the Company other than shares of Common Stock, thereafter the
number of such other shares so purchasable upon exercise of each Warrant and the
Exercise Price of such shares shall be subject to adjustment from time to time
in a manner and on terms as nearly equivalent as practicable to the provisions
with respect to the Shares contained in paragraphs (a) through (f), inclusive,
and paragraphs (h) through (m), inclusive, of this Section 8, and the provisions
of Sections 4, 5, 7 and 10 hereof, with respect to the Shares, shall apply on
like terms to any such other shares.
(h) Upon the expiration of any rights, options, warrants or
conversion rights or exchange privileges that caused adjustments under this
Section 8, such adjustments with respect to any unexercised Warrants shall, upon
such expiration, be readjusted and shall thereafter be as they would have been
had such rights, options, warrants or conversion rights or exchange privileges
never existed.
(i) The Company may, at its option at any time during the term of
the Warrants, reduce the then current Exercise Price to any amount deemed
appropriate by the Board of Directors of the Company.
(j) Whenever the number of Shares issuable upon the exercise of
each Warrant or the Exercise Price of such Shares is adjusted, as herein
provided, the Company shall promptly mail by first class-mail, postage prepaid,
to each Holder notice of such adjustment or adjustments. No failure to mail such
notice nor any defect therein or in the mailing thereof shall affect the
validity thereof except as to the Holder to whom the Company failed to mail such
notice or whose notice was defective. A certificate of an officer of the
Company, on behalf of the Company, that such notice has been mailed shall be
prima facie
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evidence of the facts stated therein. After any such adjustment, the Company
shall prepare a certificate setting forth the number of Shares issuable upon the
exercise of each Warrant and the Exercise Price of such Warrant after such
adjustment, setting forth a brief statement of the facts requiring such
adjustment. Such certificate shall, except as provided below, be conclusive as
to the correctness of such adjustment, and each Holder shall have the right to
inspect such certificate during reasonable business hours. Any determination as
to whether an adjustment is required pursuant to this Section 8, or as to the
amount of any such adjustment, shall be initially made in good faith by the
Board of Directors of the Company. If the Holders of a majority of the then
outstanding Warrants shall, in the exercise of their reasonable discretion,
object to such determination, the amount of such adjustment shall be made by an
independent accounting or investment banking firm selected by the Holders of a
majority of the then outstanding Warrants and reasonably acceptable to the
Company. The fees and expenses of such independent accounting or investment
banking firm shall be borne equally by (i) the Holders making such objection and
(ii) the Company.
(k) Except as provided in this Section 8, no adjustment in
respect of any dividends shall be made during the term of a Warrant or upon the
exercise of a Warrant.
(l) If the Company consolidates with or merges into another
corporation or if the Company sells or conveys all or substantially all its
property to another corporation, or if the Company enters into a statutory share
exchange with another Company pursuant to which its Common Stock is exchanged
for, or changed into, securities or property of another Company, the Company or
such successor or purchasing corporation (or an affiliate of such successor or
purchasing corporation), as the case may be, then each Holder shall have the
right thereafter upon payment of the Exercise Price in effect immediately prior
to such action to purchase upon exercise of each Warrant the kind and amount of
shares and other securities and property (including cash) that such Holder would
have owned or been entitled to receive after the happening of the consolidation,
merger, sale, conveyance or share exchange had such Warrant been exercised
immediately prior to such action. If such Holder does not elect to exercise each
Warrant held by it prior to the effective time of the consolidation, merger,
sale, conveyance or share exchange, then such Holder shall forfeit its Warrants
and such Warrants shall be cancelled and of no further force and effect.
(m) Notwithstanding any adjustment in the Exercise Price or the
number or kind of shares purchasable upon the exercise of the Warrants pursuant
to this Agreement, certificates for Warrants issued prior or subsequent to such
adjustment may continue to express the same price and number and kind of shares
as are initially issuable pursuant to this Agreement.
9. FRACTIONAL INTERESTS. The Company shall not be required to issue
fractions of Shares on the exercise of Warrants. If more than one Warrant is
presented for exercise in full at the same time by the same Holder, the number
of Shares issuable upon the exercise thereof shall be computed on the basis of
the aggregate number of Shares issuable on exercise of the Warrants so
presented. If any fraction of a Share would, except for the provisions of this
Section 9, be issuable on the exercise of any Warrants (or specified portions
thereof), the Company shall purchase such fraction for an amount in cash equal
to the same fraction of the
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current Market Price per share of Common Stock (determined as provided in
Section 8(d) of this Agreement) on the date of exercise.
10. REGISTRATION RIGHTS.
(a) DEMAND REGISTRATION RIGHTS.
(i) The Company covenants and agrees with the Agent and
any other or subsequent Holders of the Registrable Securities (as defined in
paragraph (f) of this Section 10) that, upon the written request of the then
Holder(s) of Warrants, Registrable Securities or both, representing at least a
majority of the shares of Common Stock underlying the Warrants originally issued
in the aggregate to the Agent or its designees, made at any time before the
Warrant Expiration Date, the Company will file as promptly as practicable and,
in any event, within sixty (60) days after receipt of such written request, at
its expense (other than (x) all underwriters', broker-dealers', placement
agents' and similar selling discounts, commissions and fees relating to the sale
of the Holder's Registrable Securities, (y) any costs and expenses of counsel,
accountants or other advisors retained by the Holder and (z) all transfer,
franchise, capital stock and other taxes, if any, applicable to the Holder's
Registrable Securities (collectively, "Holders' Expenses"), all of which shall
be paid by the Holder), no more than once (except as otherwise provided below),
a registration statement on Form X-0, X-0 or a successor form under the Act,
registering or qualifying the Registrable Securities for sale in accordance with
the intended method of sale or other disposition described in such request.
Within fifteen (15) days after receiving any such notice, the Company shall give
notice to the other Holders of the outstanding Warrants or Registrable
Securities advising that the Company is proceeding with such registration
statement and offering to include the Registrable Securities of such Holders.
The Company shall not be obligated to any other such Holder unless that other
Holder accepts such offer by notice in writing to the Company within twenty (20)
days thereafter. The Company will use its best efforts, through its officers,
directors, auditors and counsel in all matters necessary or advisable, to file
and cause such registration statement to become effective as promptly as
practicable (but in any event within ninety (90) days of the initial filing of
such registration statement) and for a period of twelve (12) months thereafter
to reflect in the registration statement financial statements prepared in
accordance with Section 10(a)(3) of the Act and any facts or events arising
that, individually, or in the aggregate, represent a fundamental or material
change in the information set forth in the registration statement to enable
Holders of the Registrable Securities registered to sell such Registrable
Securities. The Holders may register the Registrable Securities for sale
pursuant to the registration statement without exercising the Warrants. If any
registration pursuant to this paragraph (a) is an underwritten offering, the
Holders of a majority of the Registrable Securities to be included in such
registration shall be entitled to select the underwriter or managing underwriter
(in the case of a syndicated offering) of such offering.
(ii) Anything in this Section 10(a) to the contrary
notwithstanding, if the Company's securities proposed to be registered for sale
are to be distributed in an underwritten offering and the managing underwriter
shall advise the Company in writing that, in its opinion, the amount of
securities to be offered should be limited in order to assure a successful
offering, the amount of Registrable Securities to be included in such
registration
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statement shall be so limited and shall be allocated among the persons selling
such securities in the following order of priority: (x) first, securities
subject to any demand or piggyback registration rights granted by the Company
before the Closing Date, (y) next, Registrable Securities in proportion, as
nearly as practicable, to the number of Registrable Securities desired and
eligible to be sold by each Holder of such Registrable Securities and (z) next,
any other shares of Common Stock subject to similar demand or piggyback
registration rights granted by the Company in proportion, as nearly as
practicable, to the number of shares of Common Stock desired and eligible to be
sold by each holder of such Common Stock. In the event that, (x) pursuant to the
preceding sentence, the managing underwriter limits the number of Registrable
Securities that the Holders desire to have registered and (y) the Company does
not thereafter effect a registration to include the Registrable Securities that
the Holders were not then permitted to sell within one hundred eighty (180) days
after the effective date of the registration statement from which the Holders
have been excluded, then, at any time after such one hundred eighty (180) day
period until the period ending five (5) years after the Effective Date, the
Holders of a majority of such Registrable Securities not so included may make a
request to the Company for registration under the Act of all or part of such
Registrable Securities not so included in accordance with Section 10(a)(ii).
(iii) Notwithstanding anything in this Section 10(a) to
the contrary, the Company will not be required to file a registration statement
(i) at a time when the audited financial statements required to be included
therein are not available, which time shall be limited to the period commencing
one hundred thirty five (135) days after the end of the Company's third quarter
and ending ninety (90) days after the end of such fiscal year, (ii) for the
period beginning with the filing of a registration statement under the Act with
respect to a public offering by the Company of its securities and ending one
hundred eighty (180) days after the closing of such public offering or (iii) if
in the reasonable opinion of the Company it would adversely impact the Company
in its capital raising plans or otherwise (in which latter case filing may be
delayed for up to one hundred thirty five (135) days).
(b) PIGGYBACK REGISTRATION RIGHTS. The Company covenants and
agrees with the Agent and any other Holders or subsequent Holders of the
Registrable Securities that if, at any time before the Warrant Expiration Date,
the Company proposes to file a new registration statement with respect to the
public sale of Common Stock for cash (other than in connection with an offering
to the Company's employees, an acquisition, merger or similar transaction, an
employee benefit plan, an exchange offer or a dividend reinvestment plan) under
the Act in a primary registration on behalf of the Company and/or in a secondary
registration on behalf of holders of such securities and the registration form
to be used may be used for registration of the Registrable Securities, the
Company will give prompt written notice prior to such filing to the Holders of
Warrants or Registrable Securities (regardless whether some of the Holders have
theretofore availed themselves of the right provided in Section 10(a) of this
Agreement) at the addresses appearing on the records of the Company of its
intention to file a registration statement and will use its best efforts to
include in such registration statement any of the Registrable Securities,
subject to clauses (i) and (ii) of this paragraph (b), such number of
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within twenty (20) days after notice by the
Company. All
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registrations requested pursuant to this paragraph (b) are referred to herein as
"Piggyback Registrations." All Piggyback Registrations pursuant to this
paragraph (b) will be made solely at the Company's expense, except for the
Holders' Expenses, which respective portion shall be paid by each Holder. If the
securities or blue sky laws of any jurisdiction in which the securities are
proposed to be offered would require the Holder's payment of greater
registration expenses than those otherwise required by this Section 10 and if
the Company shall determine, in good faith, that the offering of such securities
in such jurisdiction is necessary for the successful consummation of the
registered offering, then the Holder shall either agree to pay such Holder's
portion of the registration expenses required by the securities or blue sky laws
of such jurisdiction or withdraw his request for inclusion of his Registrable
Securities in such registration.
(i) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is part of an underwritten primary registration for the Company and
the managing underwriter(s) for such offering advise(s) the Company in writing
that, in its opinion, the amount of securities to be offered should be limited
in order to assure a successful offering, the amount of Registrable Securities
to be included in such registration statement shall be so limited and shall be
allocated among the persons selling such securities in the following order of
priority: (v) first, securities the Company proposes to sell, (w) next,
securities subject to any demand or other piggyback registration rights granted
by the Company before the Effective Date, (x) next, the securities issued and
sold pursuant to the Securities Purchase Agreement by and among the Company and
the purchasers in the Offering, (y) next, Registrable Securities in proportion,
as nearly as practicable, to the number of Registrable Securities desired and
eligible to be sold by each Holder of such Registrable Securities and (z) next,
any other shares of Common Stock subject to similar demand or piggyback
registration rights granted by the Company in proportion, as nearly as
practicable, to the number of shares of Common Stock desired and eligible to be
sold by each holder of such Common Stock.
(ii) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is part of an underwritten secondary registration for holders of
securities of the Company (other than pursuant to Section 10(a)) and not a
primary registration for the Company and the managing underwriter(s) for such
offering advise(s) the Company in writing that, in its opinion, the amount of
securities to be offered should be limited in order to assure a successful
offering, the amount of Registrable Securities to be included in such
registration statement shall be so limited and shall be allocated among the
persons selling such securities in the following order of priority: (w) first,
securities subject to any demand or other piggyback registration rights granted
by the Company before the Effective Date, (x) next, the securities issued and
sold pursuant to the Securities Purchase Agreement by and among the Company and
the purchasers in the Offering, (y) next, Registrable Securities in proportion,
as nearly as practicable, to the number of Registrable Securities desired and
eligible to be sold by each Holder of such Registrable Securities and (z) next,
any other shares of Common Stock subject to similar demand or piggyback
registration rights granted by the Company in proportion, as nearly as
practicable, to the number of shares of Common Stock desired and eligible to be
sold by each holder of such Common Stock.
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Notwithstanding the provisions of this Section 10(b), the Company shall
have the right at any time and for any reason or for no reason after having
given written notice pursuant to this Section 10(b) (irrespective of whether a
written request for inclusion of any such securities has been made) to elect not
to file any such proposed registration statement, or to withdraw the same after
the filing but before the effective date thereof and, thereupon, shall be
relieved from its obligation to proceed with such registration. If any
registration pursuant to this paragraph (b) is an underwritten offering, the
Company shall be entitled to select the underwriter or managing underwriter(s)
(in the case of a syndicated offering) of such offering.
(c) OTHER REGISTRATION RIGHTS. In addition to the rights above
provided, during the period commencing on the date hereof and ending on the
Warrant Expiration Date, the Company will cooperate with the then Holders of the
Registrable Securities in preparing and signing one (but not more than one)
registration statement, in addition to the registration statements discussed
above, required in order to sell or transfer the Registrable Securities and will
supply all information required therefor, but the then Holders shall pay the
costs and expenses of such additional registration (including all of the
Company's reasonable out-of-pocket costs and expenses); provided, however, that
if the Company elects to register or qualify additional shares of Common Stock,
the cost and expense of such registration statement will be pro rated between
the Company and the Holders of the Registrable Securities according to the
aggregate sales price of the securities being issued. However, the Company will
not be required to file a registration statement pursuant to this paragraph (c)
(i) at a time when the audited financial statements required to be included
therein are not available, which time shall be limited to the period commencing
one hundred thirty five (135) days after the end of the Company's third quarter
and ending ninety (90) days after the end of such fiscal year, (ii) for the
period beginning with the filing of a registration statement under the Act with
respect to a public offering by the Company of its securities and ending one
hundred eighty (180) days after the closing of such public offering or (iii) if
in the reasonable opinion of the Company it would adversely impact the Company
in its capital raising plans or otherwise (in which latter case filing may be
delayed for up to one hundred thirty five (135) days).
(d) ACTION TO BE TAKEN BY THE COMPANY. In connection with the
registration of Registrable Securities in accordance with paragraphs (a), (b) or
(c) of this Section 10, the Company will:
(i) bear the expenses of any registration or qualification under
paragraphs (a) or (b) of this Section 10, including, but not limited to,
legal, accounting and printing fees; provided, however, that in no event
shall the Company be obligated to pay any of the Holders' Expenses,
which shall be paid by the Holders; and
(ii) use its reasonable efforts to register or qualify the
Registrable Securities included in a registration statement for offer or
sale under state securities or blue sky laws of such jurisdictions in
which the Agent or such Holders shall reasonably request and do all
other acts or things necessary or advisable to effect the registration
or qualification of the Registrable Securities covered by such
registration statement in the various states; provided, however,
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that no registration or qualification shall be required in any
jurisdiction where, as a result thereof, the Company would be subject to
service of general process, taxation as a foreign corporation doing
business in such jurisdiction, any requirement that it qualify generally
to do business as a foreign corporation in such jurisdiction or any
requirement that it agree to restrictions on future actions by the
Company to which it is not then subject.
(e) ACTION TO BE TAKEN BY THE HOLDERS. Any written request to exercise
registration rights pursuant to paragraphs (a) or (b) of this Section 10 shall
contain, as applicable, (i) a description of the proposed plan of distribution
of the Registrable Securities, including the name of any underwriters, the
amounts underwritten and any material relationship between any proposed
underwriter and the Company, (ii) the full name of the Holder, the number of
Warrants, Registrable Securities and other securities of the Company owned by
such Holder and the number proposed to be registered and (iii) a description of
any position, office or other material relationship which the Holder has had
within the past three (3) years with the Company or any of its predecessors or
affiliates.
In addition, in connection with the registration of Registrable
Securities in accordance with paragraphs (a), (b) or (c) of this Section 10, the
Company's obligation shall be conditioned as to each such public offering upon a
timely receipt by the Company in writing of:
(i) information as to participating Holders (to the extent
required by the Rules and Regulations) and the terms of such public
offering furnished by or on behalf of each Holder intending to make a
public offering of such Holder's Registrable Securities;
(ii) such other information as the Company may reasonably require
from such Holders, or any underwriter for any of them, for inclusion in
such registration statement; and
(iii) all documents reasonably requested by any underwriter in
connection with the offering and any other documents customary in
similar offerings, signed and delivered by such Holder, including,
without limitation, underwriting agreements, custody agreements, powers
of attorney, indemnification agreements, and agreements restricting
other sales of securities.
(f) For purposes of this Section 10, (i) the term "Holder" shall include
holders of Registrable Securities received upon exercise of Warrants, and (ii)
the term "Registrable Securities" shall mean the Shares, if issued, until the
Warrant Expiration Date.
(g) Each Holder agrees that, upon receipt of any notice from the Company
of the happening of any of the following: (i) the issuance by the Securities and
Exchange Commission of any stop order denying or suspending the effectiveness of
any registration statement covering Registrable Securities or the initiation or
threatening of any proceeding for that purpose, (ii) the Company's receipt of
any stop order denying registration or suspending
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14
the qualification of the Registrable Securities for sale or the initiation or
threatening of any proceeding for such purpose or (iii) the happening of any
event that makes any statement made in such registration statement, the related
prospectus or any document incorporated by reference therein untrue or that
requires any change in such registration statement, prospectus or document
incorporated by reference therein to make the statements not include an untrue
statement of material fact or not omit any material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing, each Holder shall discontinue the disposition
of Registrable Securities until such Holder receives a supplemental or amended
prospectus from the Company or until the Company advises such Holder in writing
that the Holder may resume the use of such prospectus and have received copies
of any additional or supplemental filings which are incorporated by reference in
the prospectus. If the Company so directs, such Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in the Holder's possession, of the prospectus covering the Registrable
Securities at the time the Holder received the notice. Upon the occurrence of
such event, the Company shall immediately take such action as may be necessary
to resume sale of the Registrable Securities and the use of such prospectus, by
amendment or otherwise.
11. NOTICES TO HOLDERS.
(a) Nothing in this Agreement or in any Warrants shall be
construed as conferring upon the Holders the right to vote or to receive
dividends or to consent or to receive notice as stockholders in respect of the
meetings of stockholders or the election of directors of the Company or any
other matter or any rights whatsoever as stockholders of the Company prior to
the exercise of Warrants and such Holder becoming a holder of record of Shares.
(b) If the Company intends to make any distribution on its Common
Stock (or other securities that may be issuable in lieu thereof upon the
exercise of Warrants), including, without limitation, any such distribution to
be made in connection with a consolidation or merger in which the Company is the
surviving entity or to issue subscription rights or warrants to holders of its
Common Stock, the Company shall cause a notice of its intention to make such
distribution to be sent by first-class mail, postage prepaid, at least twenty
(20) days prior to the date fixed as a record date or the date of closing the
transfer books in relation to such distribution, to each registered Holder of
Warrants at such Holder's address appearing on the Warrant Register, but failure
to mail or to receive such notice or any defect therein or in the mailing
thereof shall not affect the validity of any action taken in connection with
such distribution.
12. NOTICES. Any notice pursuant to this Agreement to be given by the
Holder of any Warrant or the holder of any Share to the Company shall be
sufficiently given or made three business days after sent by first-class mail,
postage prepaid, addressed as follows or to such other address as the Company
may designate by notice given in accordance with this Section 12, to the Holders
of Warrants or the holders of Shares:
Women First HealthCare, Inc.
00000 Xx Xxxxxx Xxxx, Xxxxx 000
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Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Chairman, President & CEO
Notices or demands authorized by this Agreement to be given or made by
the Company to or on the Holder of any Warrant or the holder of any Share shall
be sufficiently given or made (except as otherwise provided in this Agreement)
if sent by first-class mail, postage prepaid, addressed to such Holder or such
holder of Shares at the address of such Holder or such holder of Shares as shown
on the Warrant Register or the books of the Company, as the case may be.
13. GOVERNING LAW. This Agreement and each Warrant issued hereunder
shall be governed by and construed in accordance with the substantive laws of
the State of New York, without giving effect to the principles of conflicts of
law. The Company will accept service of process by notice given to it pursuant
to the provisions of Section 12 hereof.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
such counterparts together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the day, month and year first above written.
WOMEN FIRST HEALTHCARE, INC.
By: /s/ XXXXXX X. XXXXXX
------------------------------
Its: Chairman, President and CEO
-----------------------------
GRUNTAL & CO., L.L.C.
By: /s/ XXXX XXXXX
------------------------------
Its: Executive Vice President
-----------------------------
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SCHEDULE I
NAME OF NUMBER OF
INITIAL HOLDER WARRANTS
-------------- --------
Gruntal & Co., L.L.C. 200,000
Total 200,000
