ROCKWELL MEDICAL TECHNOLOGIES, INC. REGISTRATION RIGHTS AGREEMENT
Exhibit 10.21
ROCKWELL MEDICAL TECHNOLOGIES, INC.
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of November 28, 2007
by and among (i) Rockwell Medical Technologies, Inc., a Michigan corporation, (the
“Company”) and (ii) each person listed on
Schedule 1 hereto (each of the persons or
entities described in clause (ii), individually, a
“Purchaser” and, collectively, the
“Purchasers”).
WHEREAS, the Company has agreed to issue and sell to the Purchasers, and the Purchasers have
agreed to purchase from the Company, (i) an aggregate of 2,158,337 shares (the “Shares”) of
the authorized but unissued shares of common stock, no par value per share, of the Company
(including any securities into which or for which such shares may be exchanged for, or converted
into, pursuant to any stock dividend, stock split, stock combination, recapitalization,
reclassification, reorganization or other similar event, the “Common Stock) and
(ii) warrants to purchase an aggregate of 1,079,169 shares of Common Stock, in each case all upon
the terms and subject to the conditions set forth in that certain Common Stock Purchase Agreement,
dated as of the date hereof, between the Company and the Purchasers
(the “Stock Purchase Agreement”); and
WHEREAS, the terms of the Stock Purchase Agreement provide that it shall be a condition
precedent to the closing of the transactions thereunder, for the Company and the Purchasers to
enter into, execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the
parties hereto hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings provided therefor below
or elsewhere in this Agreement as described below:
“Affiliate” means any Person that, directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, a Person, as such terms are used and
construed under Rule 144. With respect to a Purchaser, any investment fund or managed account that
is managed on a discretionary basis by the same investment manager as such Purchaser will be deemed
to be an Affiliate of such Purchaser.
“Board” means the board of directors of the Company.
“Business Day” means any day except Saturday, Sunday and any day which shall
be a federal legal holiday or a day on which banking institutions in the State of Delaware or the
Commonwealth of Massachusetts are authorized or required by law or other governmental action to
close.
“Closing Date” means the date on which the transactions contemplated by the Stock Purchase
Agreement are consummated.
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“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and all of the rules and
regulations promulgated thereunder.
“Person” (whether or not capitalized) means an individual, partnership, limited liability
company, corporation, association, trust, joint venture, unincorporated organization or any other
form of entity not specifically listed herein, and any government, governmental department or
agency or political subdivision thereof.
“Prospectus” means the prospectus included in any Registration Statement (including,
without limitation, a prospectus that includes any information previously omitted from a prospectus
filed as part of an effective Registration Statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Shares covered by such Registration
Statement, and all other amendments and supplements to such Prospectus, including post-effective
amendments, and all material incorporated by reference in such Prospectus.
“Registrable
Shares” means, at the relevant time of reference thereto, the Shares and the
Warrant Shares (including in each case any shares of capital stock that may be issued in respect
thereof pursuant to a stock split, stock dividend, recombination, reclassification, exchange,
conversion or the like), provided, however, that the term “Registrable
Shares” shall not include any of the Shares or Warrant Shares that are actually sold
pursuant to a registration statement that has been declared effective under the Securities Act by
the SEC.
“Registration Statement” means the Mandatory Registration Statement, any
Demand Registration on Form S-3, and any additional registration statements contemplated by this
Agreement, including (in each case) the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and
all material incorporated by reference in such registration statement or Prospectus.
“Rule 144” means Rule 144 promulgated under the Securities Act and any successor or substitute
rule, law or provision.
“SEC” means the Securities and Exchange Commission.
“Securities
Act” means the Securities Act of 1933, as amended, and all of the rules and
regulations promulgated thereunder.
“Warrants” means the warrants to purchase Common Stock, dated as of the Closing Date,
issued by the Company to the Purchasers pursuant to the Stock Purchase Agreement, a form of which
is attached to the Stock Purchase Agreement as Exhibit A.
“Warrant Shares” means the shares of Common Stock issued or issuable upon the
exercise of the Warrants.
2. MANDATORY REGISTRATION.
(a) As promptly as possible after the date hereof, and in any event no later than 45 days
after the date of this Agreement (the date which occurs 45 days after the date of this Agreement,
the “Filing Date”) the Company will prepare and file with the SEC a registration statement on Form
S-3 (or such other appropriate form) for the purpose of registering under the Securities Act all of
the Registrable Shares for resale by, and for the account of, each Purchaser as an initial selling
stockholder thereunder
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(the “Mandatory Registration Statement”). The Mandatory Registration
Statement shall permit the Purchasers to offer and sell, on a delayed or continuous basis pursuant
to Rule 415 under the Securities Act, any or all of the Registrable Shares. Such Registration
Statement also shall cover, to the extent allowable under the Securities Act and the rules
promulgated thereunder (including Rule 416), such indeterminate number of additional shares of
Common Stock resulting from stock splits, stock dividends or similar transactions with respect to
the Registrable Shares. Such Registration Statement shall not include any shares of Common Stock or
other securities for the account of any other holder without the prior written consent of the
holders of a majority of the Registrable Shares. The Company agrees to use its best efforts to
cause the Mandatory Registration Statement to be declared effective as soon as possible but in no
event later than (the “Mandatory Effective Date”) sixty (60) calendar days after the Filing Date
(if no SEC review of the Mandatory Registration Statement) or one hundred twenty (120) calendar
days after the Filing Date (if there is an SEC review of the Mandatory Registration Statement), and
to file with the SEC, within three (3) Business Days of the date that the Company is notified
(orally or in writing, whichever is earlier) by the SEC that the Mandatory Registration Statement
will not be “reviewed” or will not be subject to further review, a request for acceleration of
effectiveness in accordance with Rule 461 promulgated under the Securities Act (an
“Acceleration Request”), which request shall request an effective date that is
within three (3) Business Days of the date of such request. The Company shall notify each
Purchaser in writing promptly (and in any event within one (1) Business Day) after the Company’s
submission of an Acceleration Request to the SEC. The Company shall be required to keep the
Mandatory Registration Statement continuously effective (including through the filing of any
required post-effective amendments) until the earlier to occur of (i) the date after which all of
the Registrable Shares registered thereunder shall have been sold and (ii) the second
(2nd)
anniversary of the Mandatory Effective Date; provided, that in either case such
date shall be extended by the amount of time of any Suspension Period. Thereafter, the Company
shall be entitled to withdraw the Mandatory Registration Statement and, upon such withdrawal, the
Purchasers shall have no further right to offer or sell any of the Registrable Shares pursuant to
the Mandatory Registration Statement (or any Prospectus relating thereto).
(b) Notwithstanding anything in this Section 2 to the contrary, if the Company shall furnish
to the Purchasers a certificate signed by the President or Chief Executive Officer of the Company
stating that the Board has made the good faith determination (i) that the continued use by the
Purchasers of the Mandatory Registration Statement for purposes of effecting offers or sales of
Registrable Shares pursuant hereto would require, under the Securities Act and the rules and
regulations promulgated thereunder, premature disclosure in the Mandatory Registration Statement
(or the Prospectus relating thereto) of material, nonpublic information concerning the Company, its
business or prospects or any proposed material transaction involving the Company, (ii) that such
premature disclosure would be materially adverse to the Company, its business or prospects or any
such proposed material transaction or would not be in the best interests of the Company and
(iii) that it is therefore essential to suspend the use by the Purchasers, of the Mandatory
Registration Statement (and the Prospectus relating thereto), then the right of the Purchasers to
use the Mandatory Registration Statement (and the Prospectus relating thereto) for purposes of
effecting offers or sales of Registrable Shares pursuant thereto shall be suspended for a period
(the “Suspension Period”) not greater than twenty (20) consecutive Business Days at any one time
and not greater than an aggregate of sixty (60) Business Days during any consecutive twelve (12)
month period; provided, however, that in no event, without the prior written consent of a Purchaser
and upon entry between the Company and Purchaser of a confidentiality agreement with respect to
such material non-public information, shall the Company disclose to such Purchaser any of the facts
or circumstances regarding material non-public information giving rise to such suspension. During
the Suspension Period, the Purchasers shall not offer or sell any Registrable Shares pursuant to or
in reliance upon the Mandatory Registration Statement (or the Prospectus relating thereto). The
Company agrees that, as promptly as possible, but in no event later than one (1) Business Day,
after
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the consummation, abandonment or public disclosure of the event or transaction that caused the
Company to suspend the use of the Mandatory Registration Statement (and the Prospectus relating
thereto) pursuant to this Section 2(c), the Company will use its commercially reasonable efforts to
as promptly as possible lift any suspension, provide the Purchasers with revised Prospectuses, if
required, and will notify the Purchaser of their ability to effect offers or sales of Registrable
Shares pursuant to or in reliance upon the Mandatory Registration Statement.
(c) It shall be a condition precedent to the obligations of the Company to register
Registrable Shares for the account of a Purchaser pursuant to this Section 2 or Section 3 that such
Purchaser furnish to the Company such information regarding itself, the Registrable Securities held
by it, and the method of disposition of such securities as shall be required to effect the
registration of such Purchaser’s Registrable Securities.
2A. MANDATORY S-3 REGISTRATION RIGHTS
(a) If at any time any Registrable Shares are not able to be resold pursuant to an effective
Mandatory Registration Statement, and if Form S-3 (or other equivalent form) is then available for
the registration of such Registrable Shares, and the Company shall receive from any Purchaser
(including for this purpose its Affiliates) who holds (or who together hold) at least fifteen
percent (15%) of the then outstanding Registrable Shares a written
request or requests (a “Demand
Notice”) that the Company effect a registration on Form
S-3 (a “Demand Registration”), or any
successor or substitute form, with respect to all or a part of the Registrable Shares owned by such
Purchaser(s), then the Company will promptly give written notice of the proposed registration and
the Purchaser’s or Purchasers’ request therefor to all other Purchasers, and use best efforts to
effect such registration, as soon as practicable and in any event within sixty (60) days, of all or
such portion of such Purchaser’s or Registrable Shares as are specified in such request, together
with all or such portion of the Registrable Shares of any other Purchaser or Purchasers joining in
such request as are specified in a written request given within ten (10) business days after
receipt of such written notice from the Company; provided, however, that the
Company may temporarily suspended the use of such registration statement for the same reasons and
on the same terms as described in Section 2(b) above. The Company shall not be required to effect
more than three (3) registrations pursuant to this Section 2A(a) during any consecutive twelve (12)
month period.
(b) It shall be a condition precedent to the obligations of the Company to register
Registrable Shares for the account of a Purchaser pursuant to this Section 2 or Section 3 that such
Purchaser furnish to the Company such information regarding itself, the Registrable Securities held
by it, and the method of disposition of such securities as shall be required to effect the
registration of such Purchaser’s Registrable Securities.
3. “PIGGYBACK REGISTRATION”.
(a) If at any time any Registrable Shares are not able to be resold pursuant to an effective
Registration Statement, and the Company proposes to register any of its Common Stock under the
Securities Act, whether as a result of an offering for its own account or the account of others
(but excluding any registrations to be effected on Forms S-4 or S-8 or other applicable successor
Forms), the Company shall, each such time, give to the Purchasers twenty (20) days prior written
notice of its intent to do so, and such notice shall describe the proposed registration and shall
offer such Purchasers the opportunity to register such number of Registrable Shares as each such
Purchaser may request. Upon the written request of any Purchaser given to the Company within
fifteen (15) days after the receipt of any such notice by the Company, the Company shall
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include in such Registration Statement all or part of the Registrable Shares of such
Purchaser, to the extent requested to be registered.
(b) If a registration pursuant to Section 3 hereof involves an underwritten offering and the
managing underwriter shall advise the Company in writing that, in its opinion, the number of shares
of Common Stock requested by the Purchasers to be included in such registration is likely to affect
materially and adversely the success of the offering or the price that would be received for any
shares of Common Stock offered in such offering, then, notwithstanding anything in this Section 3
to the contrary, the Company shall only be required to include in such registration, to the extent
of the number of shares of Common Stock which the Company is so advised can be sold in such
offering, (i) first, the number of shares of Common Stock requested to be included in such
registration for the account of any stockholders of the Company (including the Purchasers),
pro rata among such stockholders on the basis of the number of shares of Common
Stock that each of them has requested to be included in such registration, and (ii) second, any
shares of Common Stock proposed to be included in such registration for the account of the Company.
(c) In connection with any offering involving an underwriting of shares, the Company shall not
be required under this Section 3 or otherwise to include the Registrable Shares of any Purchaser
therein unless such Purchaser accepts and agrees to the terms of the underwriting, which shall be
reasonable and customary, as agreed upon between the Company and the underwriters selected by the
Company.
4. OBLIGATIONS OF THE COMPANY. In connection with the Company’s registration obligations
hereunder, the Company shall, as expeditiously as practicable:
(a) No less than five (5) Business Days prior to filing, as required hereunder, the Mandatory
Registration Statement or Prospectus or any amendments or supplements thereto (including any
document that would be incorporated or deemed to have been incorporated therein by reference (other
than documents containing material nonpublic information)) or any other registration statement
contemplated by this Agreement, the Company shall (i) furnish to each Purchaser and any counsel
selected by the Purchasers holding a majority of the Registrable Shares (“Purchasers’
Counsel”) copies of all such documents to be filed with the SEC, which documents shall be
subject to the review of the Purchasers and Purchasers’ Counsel, (ii) cause its officers and
directors, counsel and certified public accountants to respond to such inquiries as shall be
necessary, in the reasonable opinion of Purchasers’ Counsel, to conduct a reasonable investigation
within the meaning of the Securities Act, and (iii) notify the Purchasers and the Purchasers’
Counsel of any stop order issued or threatened by the SEC and use best efforts to prevent the entry
of such stop order or to remove it if entered. The Company shall not file the Mandatory
Registration Statement, Prospectus or any amendments or supplements (other than periodic reports
and current reports on Form 8-K required under the Exchange Act) thereto to which Purchasers
holding a majority of the Registrable Shares shall reasonably object to in writing prior to filing;
provided; however that the deadline set forth in Section 2 hereof by which date the Mandatory
Registration Statement is to be filed shall be tolled during any period in which the Company and
the Purchasers address matters raised by the Purchasers in such written objection only if, and for
so long as, such objecting Purchasers consent in writing to such tolling.
(b) Prepare and file with the SEC such amendments and supplements, including post-effective
amendments, to each Registration Statement and the Prospectus used in connection therewith as may
be necessary to keep the Registration Statement continuously effective as required herein, and
prepare and file with the SEC such additional Registration Statements as necessary to register for
resale under the Securities Act all of the Registrable Shares (including naming any
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permitted transferees of Registrable Shares as selling stockholders in such Registration
Statement); (ii) cause any related Prospectus to be amended or supplemented by any required
Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424; (iii)
respond as promptly as possible to any comments received from the SEC with respect to each
Registration Statement or any amendment thereto and as promptly as possible provide the Purchasers
true and complete copies of all correspondence from and to the SEC relating to the Registration
Statement (other than correspondence containing material nonpublic information); and (iv) comply
with the provisions of the Securities Act and the Exchange Act with respect to the disposition of
all Registrable Shares covered by such Registration Statement as so amended or in such Prospectus
as so supplemented.
(c) Notify the Purchasers and Purchasers’ Counsel as promptly as possible (i) when the SEC
notifies the Company whether there will be a “review” of a Registration Statement and whenever the
SEC comments in writing on such Registration Statement; and (ii) when a Registration Statement, or
any post-effective amendment or supplement thereto, has become effective, and after the
effectiveness thereof: (A) of any request by the SEC or any other federal or state governmental
authority for amendments or supplements to the Registration Statement or Prospectus or for
additional information; (B) of the issuance by the SEC or any state securities commission of any
stop order suspending the effectiveness of the Registration Statement covering any or all of the
Registrable Shares or the initiation of any proceedings for that purpose; and (C) of the receipt by
the Company of any notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Shares for sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose. Without limitation of any remedies to which the
Purchasers may be entitled under this Agreement, if any of the events described in Section
4(c)(ii)(A), 4(c)(ii)(B), and 4(c)(ii)(C) occur, the Company shall use best efforts to respond to
and correct the event.
(d) Notify the Purchasers and Purchasers’ Counsel as promptly as possible of the happening of
any event as a result of which the Prospectus included in or relating to a Registration Statement
contains an untrue statement of a material fact or omits any fact necessary to make the statements
therein not misleading; and, thereafter, the Company will as promptly as possible prepare (and,
when completed, give notice to each Purchaser) a supplement or amendment to such Prospectus so
that, as thereafter delivered to the purchasers of such Registrable Shares, such Prospectus will
not contain an untrue statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading; provided that upon such notification by the Company,
the Purchasers will not offer or sell Registrable Shares until the Company has notified the
Purchasers that it has prepared a supplement or amendment to such Prospectus and delivered copies
of such supplement or amendment to the Purchasers (it being understood and agreed by the Company
that the foregoing proviso shall in no way diminish or otherwise impair the Company’s obligation to
as promptly as possible prepare a Prospectus amendment or supplement as above provided in this
Section 4(d) and deliver copies of same as above provided in Section 4(h) hereof), and it being
further understood that, in the case of the Mandatory Registration Statement, any such period
during which the Purchasers are restricted from offering or selling Registrable Shares shall
constitute a Suspension Period.
(e) Upon the occurrence of any event described in Section 4(d) hereof, as promptly as
possible, prepare a supplement or amendment, including a post-effective amendment, to the
Registration Statement or a supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, and file any other required document so that, as
thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary
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to make the statements therein, in light of the circumstances under which they are made, not
misleading.
(f) Use best efforts to avoid the issuance of or, if issued, obtain the withdrawal of, (i) any
order suspending the effectiveness of any Registration Statement or (ii) any suspension of the
qualification (or exemption from qualification) of any of the Registrable Shares for sale in any
jurisdiction, as promptly as possible (it being understood that, in the case of the Mandatory
Registration Statement, any period during which the effectiveness of the Mandatory Registration
Statement or the qualification of any Registrable Shares is suspended shall constitute a Suspension
Period).
(g) Furnish to the Purchasers and Purchasers’ Counsel, without charge, at least one conformed
copy of each Registration Statement and each amendment thereto, and all exhibits to the extent
requested by such Purchaser or Purchasers’ Counsel (including those previously furnished or
incorporated by reference) as promptly as possible after the filing of such documents with the SEC.
(h) As promptly as possible furnish to each selling Purchaser, without charge, such number of
copies of a Prospectus, including a preliminary Prospectus, in conformity with the requirements of
the Securities Act, and such other documents (including, without limitation, Prospectus amendments
and supplements) as each such selling Purchaser may reasonably request in order to facilitate the
disposition of the Registrable Shares covered by such Prospectus and any amendment or supplement
thereto. The Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Purchasers in connection with the offering and sale of
the Registrable Shares covered by such Prospectus and any amendment or supplement thereto to the
extent permitted by federal and state securities laws and regulations.
(i) Use best efforts to register and qualify (or obtain an exemption from such registration
and qualification) the Registrable Shares under such other securities or blue sky laws of such
jurisdictions as each Purchaser shall request, to keep such registration or qualification (or
exemption therefrom) effective during the periods each Registration Statement is effective, and do
any and all other acts or things which may be reasonably necessary or advisable to enable each
Purchaser to consummate the public sale or other disposition of Registrable Shares in such
jurisdiction, provided that the Company shall not be required in connection therewith or as
a condition thereto to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions where it is not then qualified or subject to process.
(j) Cooperate with the Purchasers to facilitate the timely preparation and delivery of
certificates representing the Registrable Shares to be delivered to a transferee pursuant to a
Registration Statement, which certificates shall be free, to the extent permitted by the Stock
Purchase Agreement and applicable law, of all restrictive legends, and to enable such Registrable
Shares to be in such denominations and registered in such names as such Purchasers may request.
(k) Cooperate with any reasonable due diligence investigation undertaken by the Purchasers,
any managing underwriter participating in any disposition pursuant to a Registration Statement,
Purchasers’ Counsel and any attorney, accountant or other agent retained by Purchasers or any
managing underwriter, in connection with the sale of the Registrable Shares, including, without
limitation, making available any documents and information; provided, however, that
the Company will not deliver or make available to any Purchaser material, nonpublic information
unless such Purchaser specifically requests and consents in advance in writing to receive such
material,
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nonpublic information and, if requested by the Company, such Purchaser agrees in writing to
treat such information as confidential.
(l) At the request of an Affiliate, the Company shall amend any Registration Statement to
include such Affiliate as a selling stockholder in such Registration Statement.
(m) Comply with all applicable rules and regulations of the SEC in all material respects.
5. EXPENSES OF REGISTRATION. The Company shall pay for all expenses incurred in connection
with a registration pursuant to this Agreement and compliance with Section 4 of this Agreement,
including without limitation (i) all registration, filing and qualification fees and expenses
(including without limitation those related to filings with the SEC, the Nasdaq Global Market and
in connection with applicable state securities or blue sky laws), (ii) all printing expenses, (iii)
all messenger, telephone and delivery expenses incurred by the Company, (iv) all fees and
disbursements of counsel for the Company and Purchasers’ counsel which amount shall be limited to
$15,000 for each such registration, filing or qualification, and (v) all fees and expenses of all
other Persons retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement.
6. DELAY OF REGISTRATION AND PAYMENTS. Subject to Section 11(d) hereof, the Purchasers and
the Company (other than with respect to Section 4(d) hereof) shall not take any action to restrain,
enjoin or otherwise delay any registration as the result of any controversy which might arise with
respect to the interpretation or implementation of this Agreement. The Company shall make the
following payments to each Purchaser in the event of any of the following delays pertaining to the
Mandatory Registration Statement covering the Registrable Securities: (a) if the Company shall not
have prepared and filed the Mandatory Registration Statement with the SEC covering the resale of
the Registrable Securities on or prior to the Filing Date, then the Company shall pay each
Purchaser an amount in cash or stock, at the election of the Company, equal to 1.5% of the purchase
price of the Shares and Warrants paid by such Purchaser for every 30 calendar day period (or pro
rata portion if fewer than 30 calendar days) during which the Company has not filed such
registration statement and until such registration statement has been filed; and (b) if the SEC
shall not have declared effective such registration statement on or prior to the Mandatory
Effective Date, then the Company shall pay to each Purchaser an amount in cash or stock, at the
election of the Company, equal to 1.5% of the purchase price of the Shares and Warrants paid by
such Purchaser for every 30 calendar day period during (or pro rata portion if fewer than 30
calendar days) during which such registration statement has not been declared effective and until
the date on which such registration statement has been declared
effective by the SEC; provided,
that the maximum aggregate amount of fees paid by the Company to the Purchasers under this Section
6 shall not exceed 10% of the total purchase price paid by the Purchasers for the Shares and the
Warrants. The amounts payable as provided hereinabove shall be paid by the Company monthly in cash
(unless the Company elects for payment in stock) and without demand by the Purchaser within fifteen
(15) Business Days of the last day of each month following the commencement of any obligation to
make payment. The shares, if any, paid by the Company will be priced at market value, which is the
closing bid price immediately preceding the day that the obligation to make payment commenced.
Such payments shall not affect the right of the Purchaser to seek injunctive relief.
7. INDEMNIFICATION. In the event that any Registrable Shares of the Purchasers are
included in a Registration Statement pursuant to this Agreement:
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(a) To the fullest extent permitted by law, the Company will indemnify and hold harmless each
Purchaser and each officer, director, fiduciary, agent, investment advisor, employee, member (or
other equity holder), general partner and limited partner (and affiliates thereof) of such
Purchaser, each broker or other person acting on behalf of such Purchaser and each person, if any,
who controls such Purchaser within the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, (the “Losses”) to which they may become subject
under the Securities Act or otherwise, insofar as such Losses (or actions in respect thereof) arise
out of or relate to any untrue or alleged untrue statement of any material fact contained in the
Registration Statement, or arise out of or relate to the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to make the statements therein
not misleading, or any violation by the Company of the Securities Act or state securities or blue
sky laws applicable to the Company and leading to action or inaction required of the Company in
connection with such registration or qualification under such Securities Act or state securities or
blue sky laws; and, subject to the provisions of Section 7(c) hereof, the Company will reimburse on
demand such Purchaser, such broker or other person acting on behalf of such Purchaser or such
officer, director, fiduciary, employee, member (or other equity holder), general partner, limited
partner, affiliate or controlling person for any legal or other expenses reasonably incurred by any
of them in connection with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this Section 7(a)
shall not apply to amounts paid in settlement of any such Losses if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably withheld), nor shall
the Company be liable in any such case for any such loss, damage, liability or action to the extent
that it solely arises out of or is based upon an untrue statement of any material fact contained in
the Registration Statement or 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 that
such untrue statement or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, in reliance upon and in conformity with written information furnished by
such Purchaser expressly for use in connection with such Registration Statement.
(b) To the fullest extent permitted by law, each Purchaser, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement, each person, if any, who controls the Company within the meaning
of the Securities Act, and all other Purchasers against any Losses to which the Company or any such
director, officer or controlling person or other Purchaser may become subject to, under the
Securities Act or otherwise, insofar as such Losses (or actions in respect thereto) solely arise
out of or are based upon any untrue statement of any material fact contained in the Registration
Statement, or solely arise out of or relate to the 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 that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement in reliance upon and in conformity with written
information furnished by such Purchaser expressly for use in connection with such Registration
Statement; and, subject to the provisions of Section 7(d) hereof, such Purchaser will reimburse on
demand any legal or other expenses reasonably incurred by the Company or any such director,
officer, controlling person, or other Purchaser in connection with investigating or defending any
such Losses, provided, however, that the maximum amount of liability of such
Purchaser hereunder shall be limited to the proceeds (net of underwriting discounts and
commissions, if any) actually received by such Purchaser from the sale of Registrable Shares
covered by such Registration Statement; and provided, further, however,
that the indemnity agreement contained in this Section 7(b) shall not apply to amounts paid in
settlement of any such Losses if such settlement is effected without the consent of such Purchaser
against which the request for indemnity is being made (which consent shall not be unreasonably
withheld).
-10-
(c) As promptly as possible after receipt by an indemnified party under this Section 7 of
notice of the threat, assertion or commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof and the indemnifying party shall have
the right to participate in and, to the extent the indemnifying party desires, jointly with any
other indemnifying party similarly noticed, to assume at its expense the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that, the failure
to notify an indemnifying party promptly of the threat, assertion or commencement of any such
action shall not relieve such indemnifying party of any liability to the indemnified party under
this Section 7 except (and only) to the extent that it shall be finally determined by a court of
competent jurisdiction (which determination is not subject to appeal or further review) that such
failure shall have proximately and materially adversely prejudiced the indemnifying party.
(d) If any indemnified party shall have reasonably concluded that there may be one or more
legal defenses available to such indemnified party which are different from or additional to those
available to the indemnifying party, or that such claim or litigation involves or could have an
effect upon matters beyond the scope of the indemnity agreement provided in this Section 7, the
indemnifying party shall not have the right to assume the defense of such action on behalf of such
indemnified party, and such indemnifying party shall reimburse such indemnified party and any
person controlling such indemnified party for the fees and expenses of counsel retained by the
indemnified party which are related to the matters covered by the indemnity agreement provided in
this Section 7. Subject to the foregoing, an indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense thereof but the fees and
expenses of such counsel shall not be at the expense of the Company.
(e) If the indemnification provided for in this Section 7 from the indemnifying party is
applicable by its terms but unavailable to an indemnified party hereunder in respect of any Losses,
then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified party in connection with the actions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative faults of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Sections 7(a), 7(b) 7(c) and 7(d), any legal or
other fees, charges or expenses reasonably incurred by such party in connection with any
investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from any person. The
parties hereto agree that it would not be just and equitable if contribution pursuant to this
Section 7(e) were determined by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in the immediately preceding
paragraph.
(f) The indemnity and contribution agreements contained in this Section are in addition to any
liability that any indemnifying party may have to any indemnified party.
-11-
8. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to the Purchasers the
benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the
Purchasers to sell the Registrable Shares to the public without registration, the Company agrees to
use best efforts to: (i) make and keep public information available, as those terms are understood
and defined in Rule 144, (ii) file with the SEC in a timely manner all reports and other documents
required to be filed by an issuer of securities registered under the Securities Act or the Exchange
Act, (iii) undertake any additional actions reasonably necessary to maintain the availability of a
Registration Statement, including any successor or substitute forms, or the use of Rule 144, and
(iv) as long as any Purchaser owns any Shares or Warrant Shares, to furnish in writing upon such
Purchaser’s request a written statement by the Company that it has complied with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange Act, and to furnish to such
Purchaser a copy of the most recent annual and quarterly reports of the Company, and such other
reports and documents so filed by the Company as may be reasonably requested in availing such
Purchaser of any rule or regulation of the SEC permitting the selling of any such Shares without
registration.
9. TRANSFER OF REGISTRATION RIGHTS. Each Purchaser may assign or transfer any or all of its
rights under this Agreement to any Person, provided such assignee or transferee agrees in writing
to be bound by the provisions hereof that apply to such assigning or transferring Purchaser. Upon
any such, and each successive, assignment or transfer to any permitted assignee or transferee in
accordance with the terms of this Section 9, such permitted assignee or transferee shall be deemed
to be an “Purchaser” for all purposes of this Agreement.
10. ENTIRE AGREEMENT. This Agreement constitutes and contains the entire agreement and
understanding of the parties with respect to the subject matter hereof, and it also supersedes any
and all prior negotiations, correspondence, agreements or understandings with respect to the
subject matter hereof.
11. MISCELLANEOUS.
(a) This Agreement, and any right, term or provision contained herein, may not be amended,
modified or terminated, and no right, term or provision may be waived, except with the written
consent of (i) the holders of a majority of the then outstanding Registrable Shares and (ii) the
Company; provided that, with respect to any right, term or provision affecting a Purchaser that
does not similarly affect all Purchasers, then such right, term or provision shall not be amended,
modified or terminated, and no such right, term or provision shall be waived, except with the
written consent of such Purchaser.
(b) This Agreement shall be governed by and construed and enforced in accordance with the laws
of the State of Michigan, and shall be binding upon the parties hereto and their respective heirs,
personal representatives, successors and permitted assigns and transferees, provided that
the terms and conditions of Section 9 hereof are satisfied. Notwithstanding anything in this
Agreement to the contrary, if at any time any Purchaser (including any successors or assigned)
shall cease to own any Registrable Shares, all of such Purchaser’s rights under this Agreement
shall immediately terminate.
(c) Any notices to be given pursuant to this Agreement shall be in writing and shall be given
by certified or registered mail, return receipt request. Notices shall be deemed given when
personally delivered or when mailed to the addresses of the respective parties as set forth on
-12-
Exhibit A hereto, or to such changed address of which any party may notify the others
pursuant hereto, except that a notice of change of address shall be deemed given when received.
(d) The parties acknowledge and agree that in the event of any breach of this Agreement,
remedies at law will be inadequate, and each of the parties hereto shall be entitled to specific
performance of the obligations of the other parties hereto and to such appropriate injunctive
relief as may be granted by a court of competent jurisdiction. All remedies, either under this
Agreement or by law or otherwise afforded to any of the parties, shall be cumulative and not
alternative, and shall be in addition to the payment of fees as set forth in this Agreement.
(e) This Agreement may be executed in a number of counterparts. All such counterparts
together shall constitute one Agreement, and shall be binding on all the parties hereto
notwithstanding that all such parties have not signed the same counterpart. The parties hereto
confirm that any facsimile copy of another party’s executed counterpart of this Agreement (or its
signature page thereof) will be deemed to be an executed original thereof.
(f) Except as contemplated in Section 9 hereof, this Agreement is intended solely for the
benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights
in favor of, any Person (including, without limitation, any stockholder or debt holder of the
Company) other than the parties hereto.
(g) If any provision of this Agreement is invalid, illegal or unenforceable, such provision
shall be ineffective to the extent, but only to the extent of, such invalidity, illegality or
unenforceability, without invalidating the remainder of such provision or the remaining provisions
of this Agreement, unless such a construction would be unreasonable.
(h) This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and
their permitted successors and assigns.
[signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of
the date and year first above written.
| CORPORATION: | ||||||
| ROCKWELL MEDICAL TECHNOLOGIES, INC. | ||||||
| By: | ||||||
|
|
||||||
| Name: | ||||||
| Title: | ||||||
-2-
| PURCHASERS: | ||||||
| RA CAPITAL BIOTECH FUND, L.P. | ||||||
| By: RA Capital Management, LLC, Its General Partner | ||||||
| By: | ||||||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||||||
| Manager | ||||||
| RA CAPITAL BIOTECH FUND II, L.P. | ||||||
| By: RA Capital Management, LLC, its General Partner | ||||||
| By: | ||||||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||||||
| Manager | ||||||
-3-
| PURCHASERS: | ||||||
| RRC BIO FUND, LP | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
-4-
| BERLIN CAPITAL GROWTH, L.P. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| ▇. ▇▇▇▇▇▇ INVESTMENTS, LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
-5-
| CAMBER CAPITAL FUND, L.P. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
-6-
| MEDIPHASE OFFSHORE MASTER FUND, L.P. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
-7-
| BOXER CAPITAL LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
-8-
Exhibit A
All correspondence to the Company shall be addressed as follows:
Rockwell Medical Technologies, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal
Telecopier:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal
Telecopier:
with copies to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PLLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
All correspondence to the Purchasers shall be addressed as follows:
RA Capital Biotech Fund, ▇.▇. |
▇. ▇▇▇▇▇▇ Investments LLC | |
RA Capital Biotech Fund II, L.P. |
▇▇ ▇. ▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇ | |
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ |
▇▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
||
Berlin Capital Growth L.P. |
RRC Bio Fund, LP | |
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. |
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. | |
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
Camber Capital Fund L.P. |
Mediphase Offshore Master Fund, L.P. | |
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇ |
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ | |
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
Boxer Capital LLC |
||
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ |
||
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
Schedule 1
List of Purchasers
RA Capital Biotech Fund, L.P.
RA Capital Biotech Fund II, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RA Capital Biotech Fund II, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇▇ Investments LLC
▇▇ ▇. ▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇ ▇. ▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Berlin Capital Growth L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RRC Bio Fund, LP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Camber Capital Fund L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mediphase Offshore Master Fund, L.P.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Boxer Capital LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇