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Registration No. 333-______
As filed with the Securities and Exchange Commission on November 4, 1998
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
ROCKWELL MEDICAL TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
MICHIGAN 38-3317208
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
28025 OAKLAND OAKS 48393
WIXOM, MICHIGAN (Zip Code)
(Address of Principal Executive Offices)
ROCKWELL MEDICAL TECHNOLOGIES, INC. 1997 STOCK OPTION PLAN
(Full title of the plan)
ROBERT L. CHIOINI
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ROCKWELL MEDICAL TECHNOLOGIES, INC.
28025 OAKLAND OAKS
WIXOM, MI 48393
(Name and address of agent for service)
(248) 449-3353
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered per share offering price fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares (1) 450,000 shares (2) $ 2.31(3) $1,039,500(3) $ 288.98
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) No par value per share (the "Common Shares").
(2) This Registration Statement shall also cover any additional Common Shares
which become available for grant under the Plan by reason of any stock
dividend, stock split, recapitalization or similar transaction effected
without receipt of consideration which results in an increase in the
number of outstanding Common Shares.
(3) Calculated pursuant to Rule 457(c) and (h)(1) under the Securities Act,
solely for the purpose of computing the registration fee and, based on the
average of the high and low (or bid and asked) prices of the Common Shares
as traded on The Nasdaq SmallCap Market on November 2, 1998.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference in this
registration statement:
1. Annual Report of Rockwell Medical Technologies, Inc. (the
"Registrant"), on Form 10-KSB for the fiscal year ended December 31,
1997, filed with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
2. Quarterly Report of the Registrant on Form 10-QSB for the
fiscal quarter ended March 31, 1998, filed with the Commission
pursuant to the Exchange Act.
3. Quarterly Report of the Registrant on Form 10-QSB for the
fiscal quarter ended June 30, 1998, filed with the Commission
pursuant to the Exchange Act.
4. The description of the Registrant's Common Shares contained
in Item 1 of the Registrant's Registration Statement on Form 8-A
filed with the Commission on January 23, 1998, pursuant to Section 12
of the Exchange Act.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein by reference modifies or supersedes such prior statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Michigan Business Corporation Act, as amended, authorizes a
Michigan corporation under specified circumstances to indemnify its directors
and officers (including reimbursement for expenses incurred). The provisions of
the Registrant's Bylaws relating to indemnification of directors and executive
officers generally provide that directors and executive officers will be
indemnified to the fullest extent permissible under Michigan law. The provisions
also provide for the advancement of litigation expenses at the request of a
director or executive officer. These obligations are broad enough to permit
indemnification with respect to liabilities arising under the Securities Act of
1933, as amended, or the Michigan Uniform Securities Act, as amended.
The Michigan Business Corporation Act, as amended, also permits
Michigan corporations to limit the personal liability of directors for a breach
of the director's fiduciary duty. The provisions of the Registrant's Articles of
Incorporation limit director liability to the maximum extent currently permitted
by Michigan law. Michigan law currently allows a corporation to provide in its
articles of incorporation that a director of the corporation will not be
personally liable to the corporation or its shareholders for monetary damages
for breach of fiduciary duty as a director, except for liability for specified
acts. As a result of the inclusion of such a provision, shareholders of the
Registrant may be unable to recover monetary damages against directors for
actions taken by them which constitute negligence or gross negligence or which
are in violation of their fiduciary duties, although it may be possible to
obtain injunctive or other equitable relief with respect to such actions. If
equitable remedies are found not to be available to shareholders in any
particular case, shareholders may not have any effective remedy against the
challenged conduct. These provisions, however, do not affect liability under the
Securities Act of 1933, as amended.
In addition, the Registrant has obtained Directors' and Officers'
liability insurance. The policy provides for $2,000,000 in coverage including
prior acts dating to the Registrant's inception and liabilities under the
Securities Act of 1933, as amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
4.1 Articles of Incorporation of Rockwell Medical Technologies,
Inc., as amended, incorporated by reference to Exhibits
3(i).1, 3(i).2, 3(i).3 and 3(i).4 to the Registrant's
Registration Statement on Form SB-2, Registration No.
333-31991
4.2 Bylaws of Rockwell Medical Technologies, Inc.,
incorporated by reference to Exhibit 3(ii) to the
Registrant's Registration Statement on Form SB-2,
Registration No. 333-31991
4.3 Rockwell Medical Technologies, Inc. 1997 Stock Option Plan
5 Opinion of Honigman Miller Schwartz and Cohn
2
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23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Honigman Miller Schwartz and Cohn
(included in the opinion filed as Exhibit 5 to this
Registration Statement)
24 Power of Attorney (included after the signature of the
Registrant contained on page 6 of this Registration
Statement)
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment
to this Registration Statement;
(i) To include any prospectus
required by Section 10(a)(3) of the Securities
Act of 1933;
(ii) To reflect in the prospectus
any facts or events arising after the effective
date of the Registration Statement (or the most
recent post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value
of securities offered would not exceed that which
was registered) and any deviation from the low or
high end of the estimated maximum offering range
may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price
represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) To include any material
information with respect to the plan of
distribution not previously disclosed in the
Registration Statement or any material change to
such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the Registration Statement is on
Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining
any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration
3
<PAGE> 5
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means
of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Wixom, State of Michigan, on October 30, 1998.
ROCKWELL MEDICAL TECHNOLOGIES, INC.
By: /s/ Robert L. Chioini
--------------------------------
Robert L. Chioini
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and directors of ROCKWELL MEDICAL TECHNOLOGIES, INC., a Michigan corporation
(the "Company"), hereby constitutes and appoints Robert L. Chioini and James J.
Connor, and each of them, the true and lawful attorneys-in-fact and agents of
the undersigned, each with the power of substitution for him in any and all
capacities, with full power and authority in said attorneys-in-fact and agents
and in any one or more of them, to sign, execute and affix his seal thereto and
file the proposed registration statement on Form S-8 to be filed by the Company
under the Securities Act of 1933, as amended, which registration statement
relates to the registration and issuance of the Company's Common Shares pursuant
to the Rockwell Medical Technologies, Inc. 1997 Stock Option Plan, and any of
the documents relating to such registration statement, any and all amendments to
such registration statement, including any amendment thereto changing the amount
of securities for which registration is being sought, and any post-effective
amendment, with all exhibits and any and all documents required to be filed with
respect thereto with any regulatory authority; granting unto said attorneys, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises in order to
effectuate the same as fully to all intents and purposes as he might or could do
if personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them, may lawfully do or cause to be
done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gary D. Lewis
- ----------------------------------------------- Chairman of the Board October 29, 1998
Gary D. Lewis of Directors
/s/ Robert L. Chioini
- ----------------------------------------------- President, Chief Executive October 30, 1998
Robert L. Chioini Officer and Director
(Principal Executive Officer)
/s/ James J. Connor
- ----------------------------------------------- Vice President of Finance, October 30, 1998
James J. Connor Chief Financial Officer,
Treasurer and Secretary
(Principal Financial Officer
and Principal Accounting Officer)
/s/ Norman L. McKee
- ----------------------------------------------- Director October 30, 1998
Norman L. McKee
- ----------------------------------------------- Director
Michael J. Xirinachs
</TABLE>
6
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ----- -------
4.1 Articles of Incorporation of Rockwell Medical Technologies, Inc.,
as amended, incorporated by reference to Exhibits 3(i).1, 3(i).2,
3(i).3 and 3(i).4 to the Registrant's Registration Statement on
Form SB-2, Registration No. 333-31991
4.2 Bylaws of Rockwell Medical Technologies, Inc., incorporated by
reference to Exhibit 3(ii) to the Company's Registration Statement
on Form SB-2, Registration No. 333-31991
4.3 Rockwell Medical Technologies, Inc. 1997 Stock Option Plan
5 Opinion of Honigman Miller Schwartz and Cohn
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Honigman Miller Schwartz and Cohn (included in the
opinion filed as Exhibit 5 to this Registration Statement)
24 Powers of Attorney (included after the signature of the Registrant
contained on page 6 of this Registration Statement)
7
<PAGE> 1
EXHIBIT 4.3
ROCKWELL MEDICAL TECHNOLOGIES, INC.
1997 STOCK OPTION PLAN
-----------------------------------
1. Definitions: As used herein, the following terms shall
have the following meanings:
(a) "Code" shall mean the Internal Revenue Code of
1986, as amended, and the applicable rules and regulations
thereunder.
(b) "Committee" shall mean, (i) with respect to
administration of the Plan regarding Participants who are subject to
Section 16(a) and (b) of the Exchange Act, a committee meeting the
standards of Rule 16b-3 of the Rules and Regulations under the
Exchange Act, or any similar successor rule, appointed by the Board
of Directors of the Company to perform any of the functions and
duties of the Committee under the Plan, or the Board of Directors as
a whole, and (ii) with respect to administration of the Plan
regarding all other Participants, such committee or the Board of
Directors of the Company, as described in clause (i), or such other
committee or entity appointed by the Board of Directors of the
Company to perform any of the functions and duties of the Committee
under the Plan.
(c) "Common Shares" shall mean the Common Shares,
no par value per share, of the Company.
(d) "Company" shall mean Rockwell Medical
Technologies, Inc., a Michigan corporation, or any successor thereof.
(e) "Discretion" shall mean the sole discretion of
the Committee, with no requirement whatsoever that the Committee
follow past practices, act in a manner consistent with past
practices, or treat any key employee, director, consultant or advisor
in a manner consistent with the treatment afforded other key
employees, directors, consultants or advisors with respect to the
Plan or otherwise.
(f) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder.
(g) "Incentive Option" shall mean an option to
purchase Common Shares which meets the requirements set forth in the
Plan and also is intended to be, and qualifies as, an incentive stock
option within the meaning of Section 422 of the Code.
(h) "Nonqualified Option" shall mean an option to
purchase Common Shares which meets the requirements set forth in the
Plan but is not intended to be, or does not qualify as, an incentive
stock option within the meaning of the Code.
<PAGE> 2
(i) "Participant" shall mean any individual
designated by the Committee under Paragraph 6 for participation in
the Plan.
(j) "Plan" shall mean this Rockwell Medical
Technologies, Inc. 1997 Stock Option Plan.
(k) "Securities Act" shall mean the Securities Act of
1933, as amended, and the rules and regulations thereunder.
(l) "Subsidiary" shall mean any corporation or other
entity in which the Company has a direct or indirect ownership
interest of 50% or more of the total combined voting power of all
classes of outstanding voting equity interests.
2. Purpose of Plan: The purpose of the Plan is to provide key
employees (including officers), directors, consultants and advisors of the
Company and its Subsidiaries (collectively, "key employees") with an increased
incentive to make significant and extraordinary contributions to the long-term
performance and growth of the Company and its Subsidiaries, to join the
interests of key employees, directors, consultants and advisors with the
interests of the shareholders of the Company, and to facilitate attracting and
retaining key employees, directors, consultants and advisors of exceptional
ability.
3. Administration: The Plan shall be administered by the
Committee. Subject to the provisions of the Plan, the Committee shall determine,
from those eligible to be Participants under the Plan, the persons to be granted
stock options, the amount of stock to be optioned to each such person, the time
such options shall be granted and the terms and conditions of any stock options.
Such terms and conditions may, in the Committee's Discretion, include, without
limitation, provisions providing for termination of the option, forfeiture of
the gain on any option exercises or both if the Participant competes with the
Company or otherwise acts contrary to the Company's interests, and provisions
imposing restrictions, potential forfeiture or both on shares acquired upon
exercise of options granted pursuant to this Plan. The Committee may condition
any grant on the potential Participant's agreement to such terms and conditions.
Subject to the provisions of the Plan, the Committee is authorized to
interpret the Plan, to promulgate, amend and rescind rules and regulations
relating to the Plan and to make all other determinations necessary or advisable
for its administration. Interpretation and construction of any provision of the
Plan by the Committee shall, unless otherwise determined by the Board of
Directors of the Company, be final and conclusive. A majority of the Committee
shall constitute a quorum, and the acts of a majority of the members present at
any meeting at which a quorum is present, or acts approved in writing by a
majority of the Committee, shall be the acts of the Committee.
4. Indemnification: In addition to such other rights of
indemnification as they may have, the members of the Committee shall be
indemnified by the Company in connection with any claim, action, suit or
proceeding relating to any action taken or failure to act under or in
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connection with the Plan or any option granted hereunder to the full extent
provided for under the Company's articles of incorporation or bylaws with
respect to indemnification of directors of the Company.
5. Maximum Number of Shares Subject to Plan: The maximum
number of shares with respect to which stock options may be granted under the
Plan shall be an aggregate of 450,000 Common Shares, which may consist in whole
or in part of authorized and unissued or reacquired Common Shares. Unless the
Plan shall have been terminated, shares covered by the unexercised portion of
canceled, expired or otherwise terminated options under the Plan shall again be
available for option and sale.
Subject to Paragraph 16, the number and type of shares subject to
each outstanding stock option, the option price with respect to outstanding
stock options, the aggregate number and type of shares remaining available under
the Plan, and the maximum number and type of shares that may be granted to any
Participant in any fiscal year of the Company pursuant to Paragraph 6, shall be
subject to such adjustment as the Committee, in its Discretion, deems
appropriate to reflect such events as stock dividends, stock splits,
recapitalizations, mergers, statutory share exchanges or reorganizations of or
by the Company; provided, that no fractional shares shall be issued pursuant to
the Plan, no rights may be granted under the Plan with respect to fractional
shares, and any fractional shares resulting from such adjustments shall be
eliminated from any outstanding option.
6. Participants: The Committee shall determine and designate
from time to time, in its Discretion, those key employees (including officers),
directors, consultants and advisors of or to the Company or any Subsidiary to
whom options are to be granted and who thereby become Participants under the
Plan; provided, however, that (a) Incentive Options shall be granted only to
employees (as defined in the Code) of the Company or a corporate Subsidiary, to
the extent required by Section 422 of the Code, or any successor provision, and
(b) no Participant may be granted stock options to purchase more than 200,000
Common Shares in the aggregate in any fiscal year of the Company, subject to any
adjustments provided in the final paragraph of Paragraph 5 and in Paragraph 16.
7. Allotment of Shares: The Committee shall determine and fix
the number of Common Shares to be offered to each Participant; provided, that no
Incentive Option may be granted under the Plan to any one Participant which
would result in the aggregate fair market value, determined as of the date the
option is granted, of the underlying stock with respect to which Incentive
Options are exercisable for the first time by such individual during any
calendar year (under all of such plans of the Company and its parent and
Subsidiary corporations) exceeding $100,000.
8. Option Price: Subject to the rules set forth in this
Paragraph 8, the Committee, in its Discretion, shall establish the option price
at the time any option is granted. With respect to an Incentive Option, such
option price shall not be less than 100% of the fair market value of the stock
on the date on which such option is granted; provided, that with respect to an
Incentive
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Option granted to an employee who at the time of the grant owns (after applying
the attribution rules of Section 424(d) of the Code) more than 10% of the total
combined voting stock of the Company or of any parent or Subsidiary, the option
price shall not be less than 110% of the fair market value of the stock subject
to the Incentive Option on the date such option is granted. With respect to a
Nonqualified Option, the option price shall be not less than the par value, if
any, of the Common Shares. Fair market value of a share shall be determined by
the Committee and may be determined by using the closing sale price of the
Company's stock on any exchange or other market on which the Common Shares shall
be traded on such date, or if there is no sale on such date, on the next
following date on which there is a sale, or the average of the closing bid and
asked prices in any market or quotation system in which the Common Shares shall
be listed or traded on such date. The option price will be subject to adjustment
in accordance with the provisions of Paragraphs 5 and 16 of the Plan.
9. Granting and Exercise of Options: The granting of options
under the Plan shall be effected in accordance with determinations made by the
Committee pursuant to the provisions of the Plan, by execution of instruments in
writing in form approved by the Committee. Such instruments shall constitute
binding contracts between the Company and the Participant.
Subject to the terms of the Plan, the Committee, in its Discretion,
may grant to Participants Incentive Options, Nonqualified Options or any
combination thereof. Each option granted under the Plan shall designate the
number of shares covered thereby, if any, with respect to which the option is an
Incentive Option and the number of shares covered thereby, if any, with respect
to which the option is a Nonqualified Option.
Subject to the terms of the Plan, each option granted under the Plan
shall be exercisable at any such time or times or in any such installments as
may be determined by the Committee in its Discretion; provided, that the
aggregate fair market value (determined as of the date the option is granted) of
the underlying stock with respect to which Incentive Options are exercisable for
the first time by such individual during any calendar year (under all of such
plans of the Company and its parent and Subsidiary corporations) shall not
exceed $100,000. Except as provided in Paragraph 13, options may be exercised
only while the Participant is an employee, director, consultant or advisor of
the Company or a Subsidiary.
Notwithstanding any other term or provision of this Plan, but subject
to the requirements of the Code with respect to Incentive Options that are
intended to remain Incentive Options, in connection with a Participant ceasing
to be an employee of the Company or a Subsidiary for any reason, the stock
option agreement may provide for the acceleration of, or the Committee may
accelerate, in its Discretion (exercised at the date of the grant of the stock
option or after the date of grant), in whole or in part, the time or times or
installments with respect to which any option granted under this Plan shall be
exercisable in connection with termination of a Participant's employment with
the Company or a Subsidiary, subject to any restrictions, terms and conditions
fixed by the Committee either at the date of the award or at the date it
exercises such Discretion.
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<PAGE> 5
Successive stock options may be granted to the same Participant,
whether or not the option or options previously granted to such Participant
remain unexercised. A Participant may exercise any option granted under the
Plan, if then exercisable, notwithstanding that options granted to such
Participant prior to the option then being exercised remain unexercised.
10. Payment of Option Price: At the time of the exercise in
whole or in part of any option granted under this Plan, payment in full in cash,
or with the consent of the Committee, in its Discretion, in Common Shares or by
a promissory note payable to the order of the Company which is acceptable to the
Committee, shall be made by the Participant for all shares so purchased. Such
payment may, with the consent of the Committee, in its Discretion, also consist
of a cash down payment and delivery of such a promissory note in the amount of
the unpaid exercise price. In the Discretion of, and subject to such conditions
as may be established by, the Committee, payment of the option price may also be
made by the Company retaining from the shares to be delivered upon exercise of
the stock option that number of shares having a fair market value on the date of
exercise equal to the option price of the number of shares with respect to which
the Participant exercises the option. In the Discretion of the Committee, a
Participant may exercise an option, if then exercisable, in whole or in part, by
delivery to the Company of written notice of the exercise in such form as the
Committee may prescribe, accompanied by irrevocable instructions to a stock
broker to promptly deliver to the Company full payment for the shares with
respect to which the option is exercised from the proceeds of the stock broker's
sale of or loan against some or all of the shares. Such payment may also be made
in such other manner as the Committee determines is appropriate, in its
Discretion. No Participant shall have any of the rights of a shareholder of the
Company under any option until the actual issuance of shares to such
Participant, and prior to such issuance no adjustment shall be made for
dividends, distributions or other rights in respect of such shares, except as
provided in Paragraphs 5 and 16.
11. Transferability of Option: Except as otherwise provided in
this Paragraph 11, (i) to the extent required by Section 422 of the Code, or any
successor section, but only with respect to Incentive Options, or (ii) to the
extent determined by the Committee in its Discretion (either by resolution or by
a provision in, or amendment to, the option), (a) no option granted under the
Plan to a Participant shall be transferable by such Participant otherwise than
(1) by will, or (2) by the laws of descent and distribution or, (3) with respect
to Nonqualified Options only (unless permitted by Section 422 of the Code or any
successor section), pursuant to a qualified domestic relations order as defined
in the Code or Title I of the Employee Retirement Income Security Act, or the
rules thereunder, and (b) such option shall be exercisable, during the lifetime
of the Participant, only by the Participant.
The Committee may, in its Discretion, authorize all or a portion of
the options to be granted to an optionee to be on terms which permit transfer by
such optionee to, and the exercise of such option by, (i) the spouse, children
or grandchildren of the optionee ("Immediate Family Members"), (ii) a trust or
trusts for the exclusive benefit of such Immediate Family Members, (iii) a
partnership in which such Immediate Family Members are the only partners, or
(iv) such other persons or entities as determined by the Committee, in its
Discretion, on such terms and
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<PAGE> 6
conditions as the Committee, in its Discretion, may determine; provided, that
(y) the stock option agreement pursuant to which such options are granted must
be approved by the Committee and must expressly provide for transferability in a
manner consistent with this Paragraph 11, and (z) subsequent transfers of
transferred options shall be prohibited except for transfers the original
optionee would be permitted to make (if he or she were still the owner of the
option) in accordance with this Paragraph 11.
Following transfer, any such options shall continue to be subject to
the same terms and conditions as were applicable immediately before transfer,
provided, that for purposes of Paragraphs 9, 10, 14, 16 and 18 the term
"Participant" shall be deemed to refer to the transferee. The events of
termination of employment of Paragraph 13 shall continue to be applied with
respect to the original optionee, following which the options shall be
exercisable by the transferee only to the extent, and for the periods, specified
in Paragraph 13. The original optionee shall remain subject to withholding taxes
and related requirements upon exercise provided in Paragraph 15. The Company
shall have no obligation to provide any notice to any transferee, including,
without limitation, notice of any termination of the option as a result of
termination of the original optionee's employment with, or other service to, the
Company.
12. Continuance of Employment; No Right to Continued
Employment: The Committee may require, in its Discretion, that any Participant
under the Plan to whom an option shall be granted shall agree in writing as a
condition of the granting of such option to remain in his or her position as an
employee, director, consultant or advisor of the Company or a Subsidiary for a
designated minimum period from the date of the granting of such option as shall
be fixed by the Committee.
Nothing contained in the Plan or in any option granted pursuant to
the Plan, nor any action taken by the Committee hereunder, shall confer upon any
Participant any right with respect to continuation of employment, consultation
or other service by or to the Company or a Subsidiary nor interfere in any way
with the right of the Company or a Subsidiary to terminate such person's
employment, consultation or other service at any time.
13. Termination of Employment; Expiration of Options: Subject
to the other provisions of the Plan, including, without limitation, Paragraphs 9
and 16 and this Paragraph 13, all rights to exercise options shall terminate
when a Participant ceases to be an employee, director, consultant or advisor of
or to the Company or a Subsidiary for any cause, except that the Committee may,
in its Discretion, permit the exercise of all or any portion of the options
granted to such Participant
(i) for a period not to exceed three months
following such termination with respect to Incentive
Options that are intended to remain Incentive Options if
such termination is not due to death or permanent
disability of the Participant,
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<PAGE> 7
(ii) for a period not to exceed one year following
termination of employment with respect to Incentive Options that are
Intended to remain Incentive Options if termination of employment is
due to the death or permanent disability of the Participant, and
(iii) for a period not to extend beyond the expiration
date with respect to Nonqualified Options or Incentive Options that
are not intended to remain Incentive Options,
all subject to any restrictions, terms and conditions fixed by the Committee
either at the date of the award or at the date it exercises such Discretion. In
no event, however, shall an option be exercisable after its expiration date,
and, unless the Committee in its Discretion determines otherwise (pursuant to
Paragraph 9 or Paragraph 16), an option may only be exercised after termination
of a Participant's employment, consultation or other service by or to the
Company to the extent exercisable on the date of such termination or to the
extent exercisable as a result of the reason for such termination. The Committee
may evidence the exercise of its Discretion under this Paragraph 13 in any
manner it deems appropriate, including by resolution or by a provision in, or
amendment to, the option.
If not sooner terminated, each stock option granted under the Plan
shall expire not more than 10 years from the date of the granting thereof;
provided, that with respect to an Incentive Option granted to a Participant who,
at the time of the grant, owns (after applying the attribution rules of Section
424(d) of the Code) more than 10% of the total combined voting stock of all
classes of stock of the Company or of any parent or Subsidiary, such option
shall expire not more than 5 years after the date of granting thereof.
14. Investment Purpose: If the Committee in its Discretion
determines that as a matter of law such procedure is or may be desirable, it may
require a Participant, upon any exercise of any option granted under the Plan or
any portion thereof and as a condition to the Company's obligation to deliver
certificates representing the shares subject to exercise, to execute and deliver
to the Company a written statement, in form satisfactory to the Committee,
representing and warranting that the Participant's purchase of Common Shares
upon exercise thereof shall be for such person's own account, for investment and
not with a view to the resale or distribution thereof and that any subsequent
sale or offer for sale of any such shares shall be made either pursuant to (a) a
Registration Statement on an appropriate form under the Securities Act, which
Registration Statement has become effective and is current with respect to the
shares being offered and sold, or (b) a specific exemption from the registration
requirements of the Securities Act, but in claiming such exemption the
Participant shall, prior to any offer for sale or sale of such shares, obtain a
favorable written opinion from counsel for or approved by the Company as to the
availability of such exemption. The Company may endorse an appropriate legend
referring to the foregoing restriction upon the certificate or certificates
representing any shares issued or transferred to the Participant upon exercise
of any option granted under the Plan.
15. Withholding Payments: If upon the exercise of any
Nonqualified Option or a disqualifying disposition (within the meaning of
Section 422 of the Code) of shares acquired
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<PAGE> 8
upon exercise of an Incentive Option, there shall be payable by the Company or a
Subsidiary any amount for income tax withholding, in the Committee's Discretion,
either the Participant shall pay such amount to the Company, or the amount of
Common Shares delivered by the Company to the Participant shall be appropriately
reduced, to reimburse the Company or such Subsidiary for such payment. The
Company or any of its Subsidiaries shall have the right to withhold the amount
of such taxes from any other sums or property due or to become due from the
Company or any of its Subsidiaries to the Participant upon such terms and
conditions as the Committee shall prescribe. The Company may also defer issuance
of the stock upon exercise of such option until payment by the Participant to
the Company of the amount of any such tax. The Committee may, in its Discretion,
permit Participants to satisfy such withholding obligations, in whole or in
part, by electing to have the amount of Common Shares delivered or deliverable
by the Company upon exercise of a stock option appropriately reduced, or by
electing to tender Common Shares back to the Company subsequent to exercise of a
stock option to reimburse the Company or such Subsidiary for such income tax
withholding, subject to such rules and regulations, if any, as the Committee may
adopt. The Committee may make such other arrangements with respect to income tax
withholding as it shall determine.
16. Extraordinary Transactions: In case the Company (i)
consolidates with or merges into any other corporation or other entity and is
not the continuing or surviving entity of such consolidation or merger, or (ii)
permits any other corporation or other entity to consolidate with or merge into
the Company and the Company is the continuing or surviving entity but, in
connection with such consolidation or merger, the Common Shares are changed into
or exchanged for stock or other securities of any other corporation or other
entity or cash or any other assets, or (iii) transfers all or substantially all
of its properties and assets to any other corporation or other person or entity,
or (iv) dissolves or liquidates, or (v) effects a capital reorganization or
reclassification in such a way that holders of Common Shares shall be entitled
to receive stock, securities, cash or other assets with respect to or in
exchange for the Common Shares, then, and in each such case, proper provision
shall be made so that, each Participant holding a stock option upon the exercise
of such option at any time after the consummation of such consolidation, merger,
transfer, dissolution, liquidation, reorganization or reclassification (each
transaction, for purposes of this Paragraph 16, being herein called a
"Transaction"), shall be entitled to receive (at the aggregate option price in
effect for all Common Shares issuable upon such exercise immediately prior to
such consummation and as adjusted to the time of such Transaction), in lieu of
Common Shares issuable upon such exercise prior to such consummation, the stock
and other securities, cash and assets to which such Participant would have been
entitled upon such consummation if such Participant had so exercised such stock
option in full immediately prior thereto (subject to adjustments subsequent to
such Transaction provided for in Paragraph 5).
Notwithstanding anything in the Plan to the contrary, in connection
with any Transaction and effective as of a date selected by the Committee, which
date shall, in the Committee's judgment, be far enough in advance of the
Transaction to permit Participants holding stock options to exercise their
options and participate in the Transaction as a holder of Common Shares, the
Committee, acting in its Discretion without the consent of any Participant, may
effect
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<PAGE> 9
one or more of the following alternatives with respect to all of the outstanding
stock options (which alternatives may be made conditional on the occurrence of
the applicable Transaction and which may, if permitted by law, vary among
individual Participants): (a) accelerate the time at which stock options then
outstanding may be exercised so that such stock options may be exercised in full
for a limited period of time on or before a specified date fixed by the
Committee after which specified date all unexercised stock options and all
rights of Participants thereunder shall terminate; (b) accelerate the time at
which stock options then outstanding may be exercised so that such stock options
may be exercised in full for their then remaining term; or (c) require the
mandatory surrender to the Company of outstanding stock options held by such
Participants (irrespective of whether such stock options are then exercisable)
as of a date, before or not later than sixty days after such Transaction,
specified by the Committee, and in such event the Company shall thereupon cancel
such stock options and shall pay to each Participant an amount of cash equal to
the excess of the fair market value of the aggregate Common Shares subject to
such stock option, determined as of the date such Transaction is effective, over
the aggregate option price of such shares, less any applicable withholding
taxes; provided, however, the Committee shall not select an alternative (unless
consented to by the Participant) such that, if a Participant exercised his or
her accelerated stock option pursuant to alternative (a) or (b) and participated
in the Transaction or received cash pursuant to alternative (c), the alternative
would result in the Participant's owing any money by virtue of the operation of
Section 16(b) of the Exchange Act. If all such alternatives have such a result,
the Committee shall, in its Discretion, take such action to put such Participant
in as close to the same position as such Participant would have been in had
alternative (a), (b) or (c) been selected but without resulting in any payment
by such Participant pursuant to Section 16(b) of the Exchange Act.
Notwithstanding the foregoing, with the consent of affected Participants, each
with respect to such Participant's option only, the Committee may in lieu of the
foregoing make such provision with respect to any Transaction as it deems
appropriate.
17. Effectiveness of Plan: This Plan shall be effective on the
date the Board of Directors of the Company adopts this Plan, provided, that the
shareholders of the Company approve the Plan within 12 months before or after
its adoption by the Board of Directors. Options may be granted before
shareholder approval of this Plan, but each such option shall be subject to
shareholder approval of this Plan. No option granted under this Plan shall be
exercisable unless and until this Plan shall have been approved by the Company's
shareholders.
18. Termination, Duration and Amendments to the Plan: The Plan
may be abandoned or terminated at any time by the Board of Directors of the
Company. Unless sooner terminated, the Plan shall terminate on the date ten
years after the earlier of its adoption by the Board of Directors or its
approval by the shareholders of the Company, and no stock options may be granted
under the Plan thereafter. The termination of the Plan shall not affect the
validity of any option which is outstanding on the date of termination.
For the purpose of conforming to any changes in applicable law or
governmental regulations, or for any other lawful purpose, the Board of
Directors shall have the right, with or without approval of the shareholders of
the Company, to amend or revise the terms of this Plan
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<PAGE> 10
or any option agreement under this Plan at any time; provided, however, that (i)
to the extent required by Section 162(m) of the Code and related regulations, or
any successor rule, but only with respect to amendments or revisions affecting
Participants whose compensation is subject to Section 162(m) of the Code, and to
the extent required by Section 422 of the Code, or any successor section, but
only with respect to Incentive Options, no such amendment or revision shall
increase the maximum number of shares in the aggregate which are subject to this
Plan (subject, however, to the provisions of Paragraphs 5 and 16) without the
approval or ratification of the shareholders of the Company, and (ii) no such
amendment or revision shall change the option price (except as contemplated by
Paragraphs 5 and 16) or alter or impair any option which shall have been
previously granted under this Plan, in a manner adverse to a Participant,
without the consent of such Participant.
As adopted by the Board of Directors on July 15, 1997.
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EXHIBIT 5
November 4, 1998
Rockwell Medical Technologies, Inc.
28025 Oakland Oaks
Wixom, Michigan 48393
Re: Registration Statement on Form S-8 Relating to
Rockwell Medical Technologies, Inc. 1997 Stock Option Plan
----------------------------------------------------------
Ladies and Gentlemen:
We have represented Rockwell Medical Technologies, Inc., a Michigan
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") of a Registration
Statement on Form S-8 (the "Registration Statement"), for registration under the
Securities Act of 1933, as amended (the "Securities Act"), of a maximum of
450,000 of the Company's Common Shares, no par value (the "Common Shares"), to
be issued pursuant to the Rockwell Medical Technologies, Inc. 1997 Stock Option
Plan (the "Plan").
Based upon our examination of such documents and other matters as we
deem relevant, it is our opinion that the Common Shares to be offered by the
Company under the Plan pursuant to the Registration Statement have been duly
authorized and, when issued and sold by the Company in accordance with the Plan
and the stock options granted and exercised thereunder, will be legally issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit hereby that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
/s/ Honigman Miller Schwartz and Cohn
HONIGMAN MILLER SCHWARTZ AND COHN
PTD/DAB/LAM/RJK
<PAGE> 1
EXHIBIT 23.1
[PRICEWATERHOUSECOOPERS LETTERHEAD]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Rockwell Medical Technologies, Inc. (the Company) on Form S-8 of our report
dated March 13, 1998, which included a paragraph related to the uncertainty of
the Company's ability to continue as a going concern on our audit of the
consolidated financial statements of Rockwell Medical Technologies, Inc. as of
December 31, 1997, and for the year then ended and our report dated July 11,
1997, except for the subsequent event paragraph of Note 3, for which the date
is November 20, 1997, on our audits of Rockwell Medical Supplies, L.L.C. and
Rockwell Transportation, L.L.C. (the Predecessor Companies) as of February 19,
1997, and December 31, 1996, and for the period ended February 19, 1997, and
for the year ended December 31, 1996, which reports are included in the
Company's Annual Report on Form 10-KSB.
/s/ PricewaterhouseCoopers LLP
November 2, 1998
