<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
The Female Health Company
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(Name of Issuer)
Common Stock, $0.01 par value
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(Title of Class of Securities)
314462 10 2
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(CUSIP Number)
Stephen M. Dearholt
741 N. Milwaukee Street, Suite 500, Milwaukee, Wisconsin 53202
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
March 25, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rules 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box [_].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
This amendment is being filed to change the expiration date of a warrant
issued on February 12, 1999 and described in Item 5 and to update Item 7.
Item 5. Interest in Securities of the Issuer
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<TABLE>
<CAPTION>
Amount of Beneficial Ownership
Name of Beneficial Owner Shares Percent
<S> <C> <C>
Stephen M. Dearholt (1)(2) 1,487,784 12.4%
</TABLE>
(1) Includes options to purchase 50,000 shares (which are currently
exercisable) granted pursuant to the terms of the Company's Outside
Director Stock Option Plan.
(2) Includes 248,075 shares owned directly by Mr. Dearholt and warrants to
purchase 860,000 shares which are currently exercisable. Also includes the
following shares which Mr. Dearholt may be deemed to beneficially own:
69,500 shares held by the Dearholt, Inc. Profit Sharing Plan; 9,680 shares
held by the Response Marketing Money Purchase Plan; 6,200 shares held in a
self-directed IRA; 148,129 shares held by the Mary C. Dearholt Trust of
which Mr. Dearholt, a sibling and his mother are trustees; 18,100 shares
held by Mr. Dearholt's minor child; 18,100 shares held by the James W.
Dearholt Trust of which Mr. Dearholt is a co-trustee with a sibling, and
60,000 shares of preferred stock held by the Mary C. Dearholt Trust that
are convertible share-for-share into Issuer Common Stock. Mr. Dearholt
shares the power to vote and dispose of 226,229 shares of Issuer Common
Stock (including 60,000 shares of Preferred Stock convertible into Issuer
Common Stock) held by the Mary C. Dearholt Trust and the James W. Dearholt
Trust. Mr. Dearholt has sole power to vote and dispose of the remaining
shares of Issuer Common Stock reported herein, except that North Central
Trust has the sole power to vote and dispose of the 9,680 shares of Issuer
Common Stock held by the Response Marketing Money Purchase Plan.
On March 25, 1996, the Company borrowed $1,000,000 from Mr. Dearholt under
a one year note payable in full March 25, 1997 with interest at 12% payable
monthly. As part of this transaction, the Company issued a warrant to Mr.
Dearholt which entitles him to purchase 200,000 shares of Issuer Common Stock at
$3.10 per share, which represented the average trading price of Issuer Common
Stock for the five trading days prior to the originally scheduled closing date
for the transaction. The warrant expires upon the earlier of its exercise or
2002. The note was repaid by issuance of a new promissory note due March 25,
1998, a replacement note due March 25, 1999 and a subsequent replacement note
due on March 25, 2000. The one outstanding promissory note is now payable in
full on March 25, 2000 and bears interest at 12% per annum payable monthly. The
note proceeds were initially used by the Company to provide working capital
needed to fund the initial stages of the Company's U.S. marketing campaign and
to fund operating losses. The borrowing transactions were effected in the form
of a promissory note from the Company to Mr. Dearholt and related Note Purchase
and Warrant Agreements and Stock Issuance Agreements. The Company has issued an
additional warrant to purchase 200,000 shares of Issuer Common Stock each time a
new promissory note was issued to Mr. Dearholt at exercise prices of $1.848,
$2.25 and $1.16 per share, respectively, and expiration dates of March 25, 2004,
2006 and 2008, respectively. Under the only Stock Issuance Agreement currently
in effect with respect to this financing and extensions thereof, if the Company
fails to repay the $1,000,000 under the outstanding note when due, the Company
must issue 200,000 shares of Issuer Common Stock to Mr. Dearholt. The Company
also granted Mr. Dearholt certain securities registration rights for the Issuer
Common Stock he receives from the Company under the warrants or the Stock
<PAGE>
Issuance Agreement. When Mr. Dearholt agreed to extend the formerly outstanding
promissory note for an additional one year term to be due and payable on March
25, 2000, the Company extended the term of certain warrants held by Mr. Dearholt
which were to expire on March 25, 2001 to March 25, 2002.
On February 12, 1999, the Company borrowed $250,000 from Mr. Dearholt
under a one year note payable in full February 12, 2000 with interest at 12%
payable monthly. As part of this transaction, the Company issued a warrant to
Mr. Dearholt which entitles him to purchase 50,000 shares of Issuer Common Stock
at $1.248 per share (the average of the last bid and ask prices as quoted
through the NASDAQ Work Station II on February 12, 1999, less a discount of 20%
of said average). The borrowing transaction was effected in the form of a
promissory note from the Company to Mr. Dearholt and related Note Purchase and
Warrant Agreement and Stock Issuance Agreement. The warrant expires upon the
earlier of its exercise or February 12, 2008. Under the Stock Issuance
Agreement, if the Company fails to repay the $250,000 under the note when due,
the Company must issue 50,000 shares of Issuer Common Stock to Mr. Dearholt. The
Company also granted Mr. Dearholt certain securities registration rights for the
Issuer Common Stock he receives from the Company under the warrant or the Stock
Issuance Agreement.
Mr. Dearholt purchased, in the market, an aggregate of 10,000 shares of
Issuer Common Stock on April 19, 1999, at $1.375 per share. All shares were
purchased solely for investment purposes.
Item 7. Material to be Filed as Exhibits
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Exhibit No.
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1. Warrant to purchase shares of Issuer Common Stock issued to Stephen M.
Dearholt dated as of November 21, 1995.*
2. Warrant to purchase up to 200,000 shares of Issuer Common Stock issued
to Stephen M. Dearholt dated as of March 25, 1996.*
3. Warrant to purchase up to 200,000 shares of Issuer Common Stock issued
to Stephen M. Dearholt dated as of March 25, 1997.*
4. Warrant to purchase up to 200,000 shares of Issuer Common Stock issued
to Stephen M. Dearholt dated as of March 25, 1998.*
5. Note Purchase and Warrant Agreement between the Company and Stephen M.
Dearholt dated March 25, 1998.*
6. Stock Issuance Agreement between the Company and Stephen M. Dearholt
dated as of March 25, 1998.*
7. Warrant to purchase up to 50,000 shares of Issuer Common Stock issued
to Stephen M. Dearholt dated as of February 12, 1999.
8. Note Purchase and Warrant Agreement between the Company and Stephen M.
Dearholt dated February 12, 1999.
9. Stock Issuance Agreement between the Company and Stephen M. Dearholt
dated as of February 12, 1999.
10. Warrant to purchase up to 200,000 shares of Issuer Common Stock issued
to Stephen M. Dearholt dated as of March 25, 1999.
2
<PAGE>
11. Note Purchase and Warrant Agreement between the Company and Stephen M.
Dearholt dated March 25, 1999.
12. Stock Issuance Agreement between the Company and Stephen M. Dearholt
dated as of March 25, 1999.
*Previously filed with Amendment No. 1 to Schedule 13D on January 14, 1999.
SIGNATURE
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After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
/s/ Stephen M. Dearholt
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Stephen M. Dearholt
Dated: May 11, 1999
3
<PAGE>
EXHIBIT 7
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAW. THIS WARRANT AND ANY
INTEREST HEREIN MAY BE OFFERED, TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF ONLY
IF REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR IF AN EXEMPTION
FROM REGISTRATION IS AVAILABLE, AND ONLY IN STRICT COMPLIANCE WITH APPLICABLE
STATE SECURITIES LAWS AND REGULATIONS.
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WARRANT
FOR THE PURCHASE OF
COMMON STOCK
OF
THE FEMALE HEALTH COMPANY, INC.
Warrant Number 7
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THIS CERTIFIES THAT, FOR VALUE RECEIVED, Stephen M. Dearholt, or assigns,
is entitled to subscribe for and purchase from The Female Health Company, Inc. a
Wisconsin corporation (the "Company"), 50,000 shares of the fully paid and non-
assessable shares of Common Stock, $.01 par value per share, of the Company, at
the Purchase Price (as hereinafter defined) per share.
This Warrant and all warrants issued in substitution or exchange for all or
part hereof are herein individually called a "Warrant" and collectively the
"Warrants".
1. Definitions. When used in this Warrant, the following terms shall have
the meanings specified:
(a) "Affiliate" shall mean any Person directly or indirectly
controlling, controlled by or under direct or indirect common control with
another Person. A Person shall be deemed to control a corporation if such Person
possesses, directly or indirectly, the power to direct or cause the direction of
the management and policies of such corporation, whether through the ownership
of voting securities, by contract or otherwise.
(b) "Common Shares" shall mean and include the Company's presently
authorized shares of Common Stock and shall also include any capital stock of
any class of the Company hereafter authorized which shall not be limited to a
fixed sum or percentage of par value in respect of the rights of the holders
thereof to participate in dividends or in the distribution of assets upon the
voluntary or involuntary liquidation, dissolution or winding up of the Company;
provided that the shares purchasable pursuant to this Warrant shall include
shares designated as Common Stock of the Company on the date of original issue
of this Warrant or, in case of any reclassification of the outstanding shares
thereof, the stock, securities or assets provided for in Section 5(a) hereof.
(c) "Common Stock" shall mean the common stock, $.01 par value per
share, of the Company.
<PAGE>
(d) "Expiration Date" shall mean the earliest to occur of the
following: (i) the exercise of all of the rights to purchase Common Stock
represented by this Warrant; or (ii) February 12, 2008.
(e) "Holder" shall mean Stephen M. Dearholt and any permitted
transferee or assignee of all or part of this Warrant and the rights hereunder;
provided that, as used in Section 12 hereof such term shall also include any
holder or holders of Common Stock (or Other Securities) issued on the exercise
of this Warrant other than Persons who received such Common Stock (or Other
Securities) in a public offering or pursuant to Rule 144 promulgated under the
Securities Act of 1933, as amended.
(f) "Holder Group" shall have the meaning assigned thereto in Section
10 hereof.
(g) "Purchase Price" shall mean the per share purchase price of $_____
[the average of the last bid and ask prices as quoted through the NASDAQ Work
Station II on February __, 1999 less a discount of 20% of said average] (subject
to adjustment under Section 5) to be paid for shares of Common Stock purchased
pursuant to the exercise of this Warrant.
(h) "Other Securities", as used in Section 12 hereof, shall mean any
stock (other than Common Stock) and other securities of the Company or any other
Person (corporate or otherwise) which the Holder of this Warrant at any time
shall be entitled to receive, or shall have received, on the exercise of this
Warrant, in lieu of or in addition to Common Stock, or which at any time shall
be issuable or shall have been issued in exchange for or in replacement of
Common Stock or Other Securities pursuant to Section 5 hereof or otherwise.
(i) "Person" shall mean and include an individual, partnership,
corporation, trust, joint venture, incorporated organization and a government or
any department or agency thereof.
2. Exercise: Issuance of Certificates: Payment for Shares. This Warrant
may be exercised by the Holder, in whole or in part, at any time and from time
to time on or after February 12, 1999, by the surrender of this Warrant
(properly endorsed if required), and payment by the Holder to the Company of the
Purchase Price for each share of Common Stock purchased with respect to such
exercise by wire transfer or certified or cashiers check. Upon such surrender
and payment, the Holder shall be entitled to receive a certificate or
certificates representing the shares of Common Stock so purchased, which
certificate(s) may contain a standard legend indicating that such shares have
not been registered under the Securities Act and prohibiting resale thereof
without registration or an opinion of counsel that an exemption from
registration is available. The Company agrees that the shares so purchased shall
be deemed to be issued to the Holder as the record owner of such shares as of
the close of business on the date on which this Warrant shall have been
surrendered and payment made for such shares as aforesaid. Subject to the
Company's Amended and Restated Articles of Incorporation, certificates for the
shares of Common Stock so purchased shall be delivered to the Holder within a
reasonable time, not exceeding ten days, after the rights represented by this
Warrant shall have been so exercised. If the rights of the Holder of this
Warrant are exercised in part, the number of shares of Common Stock which
thereafter may be purchased pursuant to this Warrant shall be reduced
accordingly and the Company shall reissue a Warrant or Warrants of like tenor
representing in the aggregate the right to purchase the number of shares of
Common Stock as so reduced.
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3. Affirmative Covenants.
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(a) The Company covenants and agrees that the shares of Common Stock
issuable upon exercise of the rights represented by this Warrant will, upon such
exercise and issuance in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable (except as set forth in Section
180.0622(2)(b), Wis. Stats., as amended and interpreted) and free from all
taxes, liens and charges with respect to the issue. The Company further
covenants and agrees that, until the Expiration Date, the Company will at all
times have authorized, and reserved for the purpose of issue upon total or
partial exercise of the rights represented by this Warrant, a sufficient number
of shares of its Common Stock to provide for the exercise of the rights
represented by this Warrant.
(b) The Company further covenants and agrees that, until the
Expiration Date, the Company will deliver to the Holder copies of all reports
and information filed by the Company with the Securities and Exchange Commission
("SEC") pursuant to the Securities Exchange Act of 1934, as amended, within 10
days after receiving a written request from the Holder.
4. Issuance of Preferred Stock. So long as this Warrant remains
outstanding, the Company will not issue any capital stock of any class preferred
as to dividends or as to the distribution of assets upon voluntary or
involuntary liquidation, dissolution or winding up, unless the rights of the
holders thereof shall be limited to a fixed sum or percentage of par value in
respect of participation in dividends and in the distribution of such assets.
5. Anti-Dilution Provisions. The above provisions are, however, subject
to the following:
(a) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities or assets with respect to or in
exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby the Holder hereof shall hereafter have the right to
purchase and receive upon the basis and upon the terms and conditions specified
in this Warrant and in lieu of the shares of the Common Stock of the Company
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby, such shares of stock, securities or assets as may be
issued or payable with respect to or in exchange for a number of outstanding
shares of such Common Stock equal to the number of shares of such stock
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby had such reorganization, reclassification,
consolidation, merger or sale not taken place, and in any such case appropriate
provision shall be made with respect to the rights and interests of the Holder
of this Warrant to the end that the provisions hereof shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock, securities
or assets thereafter deliverable upon the exercise hereof, together with such
adjustment in the Purchase Price as may be applicable with respect thereto so
that the aggregate price to be paid for shares issued pursuant to this Warrant
shall be neither increased nor decreased. The Company shall not effect any such
consolidation, merger or sale, unless prior to the consummation thereof the
successor corporation (if other than the Company) resulting from such
consolidation or merger or the corporation purchasing such assets shall assume
by written instrument executed and mailed to the Holder hereof at the last
address of such Holder appearing on the books of the Company, the obligation to
deliver to such Holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such Holder may be entitled to
purchase.
(b) In case any time:
(1) the Company shall declare any cash dividend on its Common Stock at
a rate in excess of the rate of the last cash dividend theretofore paid;
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<PAGE>
(2) the Company shall pay any dividend payable in stock upon its
Common Stock, make any distribution (other than regular cash dividends) to the
holders of its Common Stock or redeem any shares of its Common Stock;
(3) the Company shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any class or other rights;
(4) there shall be any capital reorganization, reclassification of the
capital stock of the Company, or consolidation or merger of the Company with, or
sale of all or substantially all of its assets to another corporation; or
(5) there shall be a voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then, in any one or more of said cases, the Company shall give written notice,
by first class mail, postage prepaid, addressed to the Holder of this Warrant at
the address of such Holder as shown on the books of the Company, of the date on
which (aa) the books of the Company shall close or a record shall be taken for
such dividend, distribution or subscription rights, or (bb) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of Common Stock of record shall participate in
such dividend distribution or subscription rights, or shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, as the case may be. Such written notice shall be
given at least 15 days prior to the action in question and not less than 15 days
prior to the record date or the date on which the Company's transfer books are
closed in respect thereto.
6. Certain Events. If any event occurs as to which the provisions of this
Warrant are not strictly applicable or, if strictly applicable would not fairly
protect the rights of the Holder in accordance with the essential intent and
principles of such provisions, then the Board of Directors of the Company shall
make an adjustment in the application of such provisions, in accordance with
such essential intent and principles, so as to protect the Holder's rights as
aforesaid.
7. Term of Warrant. This Warrant shall remain outstanding and exercisable
until the Expiration Date. To the extent not previously exercised, the rights to
purchase Common Stock represented by this Warrant shall thereupon terminate.
8. Issue Tax. The issuance of certificates for shares of Common Stock
upon the total or partial exercise of this Warrant shall be made without charge
to the Holder for any issuance tax in respect thereof.
9. Closing of Books. The Company will at no time close its transfer books
against the transfer of this Warrant or act in any manner which interferes with
the timely exercise of the rights represented by this Warrant.
10. Transfer of Warrant. Subject to any registration or qualification
requirements under the Securities Act and applicable state securities laws, this
Warrant and all rights hereunder are transferable, in whole or in part, without
charge to the Holder, by the Holder in person or by duly authorized attorney,
upon surrender of this Warrant to the Company properly endorsed; provided that
the Company may require in connection with such transfer an opinion of counsel
to the effect that such transfer qualifies for an exemption from the
registration requirements of the Securities Act. If this Warrant is transferred
in part in accordance with the terms hereof, the Company shall reissue a Warrant
or Warrants of like tenor representing in the aggregate the right to purchase
the number of shares of Common Stock represented by this Warrant immediately
prior to such transfer and thereafter the Holder and all transferees and
assignees shall constitute the "Holder Group" for purposes of Section 12 hereof.
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<PAGE>
11. No Voting Rights. This Warrant shall not entitle the Holder to any
voting rights as a shareholder of the Company.
12. Registration Rights. All references in this Section 12 to Common Stock
shall be deemed to include Other Securities as applicable.
12.1 Demand Registration. At any time (whether before or after the
Expiration Date) following the exercise of the right to purchase Common Stock
pursuant to this Warrant, a Holder may demand registration under the Securities
Act of 1933, as amended (the "Securities Act") of the resale of all or part of
the Common Stock issuable or which has been issued upon exercise of this
Warrant, on Form S-1 or any similar long-form registration or, in the Company's
sole discretion, on Form S-2 or S-3 or any similar short-form registration, if
available under applicable rules of the SEC. If such request is made by less
than all Holders, the Company shall send written notice of such registration
request to the remaining Holders within 15 days of receipt of the initial
registration request. Unless a remaining Holder shall deliver to the Company,
within 20 days after such notice is sent by the Company, a written request for
inclusion in the registration demanded by the initial request of all or part of
the Common Stock issuable or which has been issued upon exercise of the Warrant
held by such remaining Holder, all rights of such remaining Holder under this
Section 12.1 shall be terminated. The written request to be delivered by a
Holder to the Company pursuant to this Section 12.1 shall (i) specify the number
of shares intended to be offered and sold by the Holder, (ii) express the
present intent of the Holder to offer such shares for distribution, and (iii)
describe the nature and method of the proposed offer and sale thereof. The
registration requested pursuant to this Section 12.1 is referred to herein as
"Demand Registration", which term shall also include any Demand Registration as
defined in any of the Dearholt Stock Documents referenced in Section 12.1(a)
hereof.
(a) Number of Registrations. Notwithstanding any contrary provision
contained in this document, the Note Purchase and Warrant Agreement between the
Company and Stephen M. Dearholt of even date, the Stock Issuance Agreement
between such parties of even date (the "February 1999 Stock Issuance
Agreement"), the Note Purchase and Warrant Agreement between the Company and
Stephen M Dearholt dated as of March 25, 1998, the Warrant issued by the Company
to Stephen M. Dearholt dated as of March 25, 1998, the Stock Issuance Agreement
between the Company and Stephen M. Dearholt dated March 25, 1998, the Note
Purchase and Warrant Agreement between the Company and Stephen M Dearholt dated
as of March 25, 1997, the Warrant issued by the Company to Stephen M. Dearholt
dated as of March 25, 1997, the Note Purchase and Warrant Agreement by and among
the Company and Stephen M. Dearholt dated as of March 25, 1996, the Warrant
issued by the Company to Stephen M. Dearholt dated as of March 26, 1996, and the
Warrant issued by the Company to Stephen M. Dearholt dated as of November 21,
1995 (collectively, the "Dearholt Stock Documents"), the Holder Group shall be
entitled to an unlimited number of Demand Registrations under all such Dearholt
Stock Documents, and shall be entitled to include all or part of the stock
received under any or all of such Dearholt Stock Documents in any Demand
Registration, as the Holder Group shall request from time to time; provided,
however, that, except for Demand Registrations requested pursuant to the last
sentence of this Section 12.1(a), any such Demand Registration shall include at
least two hundred thousand (200,000) shares of Common Stock (subject to
adjustment pursuant to Section 5(a)). A registration initiated as a Demand
Registration may be withdrawn at any time at the request of the Holders of a
majority of the shares of the Common Stock requested to be included in such
Demand Registration (the "Required Percentage"); provided that in the event a
registration initiated as a Demand Registration is so withdrawn, all expenses in
connection with such withdrawn registration (including, without limitation,
reasonable fees of counsel and accountants for the Company) shall be paid by the
participating Holders, pro rata. In the event Stephen M. Dearholt shall pledge
or assign his rights and interests to all or part of the Common Stock issued to
him upon exercise of this Warrant, or upon exercise of his rights under any of
the Dearholt Stock Documents, as collateral pursuant to a borrowing, the rights
to Demand Registrations hereunder may be assigned and transferred to said lender
(and only one lender at any given time) in connection therewith, and said lender
shall be entitled to request such Demand
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<PAGE>
Registrations at any time, without regard to the two hundred thousand (200,000)
share minimum under the first sentence of this Section 12.1(a), and
notwithstanding the provisions of the first sentence of Section 12.1(c) below.
(b) Priority on Demand Registrations. The Company will not include in
the Demand Registration any securities which are not Common Stock owned by a
Holder, without the written consent of the Required Percentage of Holders. If
the Demand Registration is an underwritten offering, and the managing
underwriters advise the Company in writing that in their opinion the number of
shares of Common Stock requested to be included exceeds the number of shares of
Common Stock which can be sold in such offering without adversely affecting the
market price of the Company's Common Stock, the Company will include in such
registration (pro rata from shares of Common Stock requested to be included by
each participating Holder), prior to the inclusion of any securities which are
not shares of Common Stock owned by a Holder, the number of shares of Common
Stock owned by the Holders requested to be included which in the opinion of such
underwriters can be sold without such adverse affect; and the balance of the
shares of Common Stock which Holder requested to be included in such offering
shall be withheld from sale for a period of time requested by the underwritten,
but not to exceed one hundred twenty (120) days.
(c) Restrictions on Demand Registration. Subject to the next following
sentence and the last sentence of Section 12.1(a) above, the Company will not be
obligated to effect a Demand Registration within one hundred twenty (120) days
after the effective date of a registration in which the Holder was given an
opportunity to participate in a registered offering pursuant to Section 12.2
hereof. In the event that a Holder requests to participate in a registration
under Section 12.2 hereof and satisfies the conditions of Section 12.3, and for
whatever reason all of the shares of Common Stock which such Holder so requests
to be registered are not registered or are not permitted to be offered for sale
and sold prior to shares of Common Stock or other equity securities being
registered and offered by the Company in such registration, then the provisions
of the first sentence of this Section 12.1(c) shall not apply, and the Company
shall be obligated to effect a Demand Registration requested by such Holder as
soon as practicable in accordance with the terms hereof. The Company may
postpone for up to ninety (90) days the filing or the effectiveness of a
registration statement for a Demand Registration if the Company and the Required
Percentage of Holders reasonably and in good faith agree that such Demand
Registration might have an adverse effect on any proposal or plan by the Company
to engage in any financing, acquisition of assets (other than in the ordinary
course of business) or any corporate reorganization, merger, consolidation,
tender offer or similar transaction.
(d) Selection of Underwriters. If the Demand Registration involves an
underwritten public offering, the Company will have the right to select the
investment banker(s) and manager(s) to administer the offering, subject to the
approval of the Required Percentage of Holders (which will not be unreasonably
withheld) of such investment banker(s) and managers(s).
12.2 Participation in Registered Offerings. If the Company at any time or
times proposes or is required to register any of its Common Stock or other
equity securities for public sale in an underwritten public offering for cash
(other than in connection with any stock option, bonus or other employee benefit
plan or arrangement) under the Securities Act or any applicable state securities
law, it will each such time give written notice to each Holder of its intention
to do so. Upon the written request of a Holder given within thirty (30) business
days after receipt of any such notice (which request shall state the intended
method of disposition of such equity securities and shall state in reasonable
detail, to the extent practicable, the net consideration, after all commissions
and discounts which the prospective seller or sellers expect to receive upon
such disposition), the Company shall use all reasonable efforts to cause all
such Common Stock which the Holder so requested to be registered (which request
will not be for less than two hundred thousand (200,000) shares of Common Stock)
to be registered under the Securities Act and any applicable state securities
laws (provided, that if the managing underwriter advises that less than all of
the registered shares of equity securities should be offered for sale so as not
to materially and adversely affect the price or salability of the offering being
registered by the Company or the participating Holders for a period not to
exceed one hundred twenty (120) days, the participating Holders will, if
requested by the Company, withhold from sale for such period
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<PAGE>
of time such number of shares of Common Stock (pro rata from the shares of
Common Stock requested to be included by the participating Holders) as the
underwriter may specify; provided further that in such event a pro rata number
of shares proposed to be offered by the Company and all other shareholders of
the Company also shall be similarly withheld from sale), all to the extent
requisite to permit the sale or other disposition (in accordance with the
intended method of disposition thereof as aforesaid) by the prospective seller
or sellers of the securities so registered. In the event an underwriter is
involved with a registration initiated by the Company of the Common Stock, and a
Holder requests to participate in the registration, the Holder must commit to
sell through the underwriter. The Company may, in its sole discretion, withdraw
any registration contemplated by this Section 12.2 and abandon the proposed
offering in which a Holder had requested to participate without any further
obligation to such Holder with respect to such registration statement or
offering; provided however that such Holder shall be indemnified by the Company
for any fees, costs and expense of and incidental to such registration,
excluding the fees and disbursements of counsel acting solely on behalf of such
Holder.
12.3 Obligations of the Holder. It shall be a condition precedent to the
obligation of the Company to register any Common Stock of a Holder pursuant to
Sections 12.1 and 12.2 hereof that such Holder shall (i) furnish to the Company
such information regarding the Common Stock held by it and the intended method
of disposition thereof and other information concerning such Holder as the
Company shall reasonably request and as shall be required in connection with the
registration statement to be filed by the Company; (ii) agree to abide by such
additional or customary terms affecting the proposed offering as reasonably may
be requested by the managing underwriter of such offering, including a
requirement, if applicable, to withhold (on a pro-rata basis) from the public
market for a period of at least one hundred twenty (120) days after any such
offering, any shares excluded from the offering at the instance of the
underwriter as permitted under Sections 12.1 and 12.2 hereof; and (iii) agree in
writing in form satisfactory to the Company to pay the underwriting discounts
and commissions applicable to the Common Stock being sold by such Holder
(subject to the maximum amounts set forth in Section 12.5 hereof).
12.4 Registration Proceedings. If and whenever the Company is required by
the provisions of Sections 12.1 and 12.2 hereof to effect the registration of
the Common Stock under the Securities Act, until the securities covered by such
registration statement have been sold or for six (6) months after effectiveness,
whichever is the shorter period of time, the Company shall:
(a) Promptly prepare and file with the SEC a registration statement
with respect to such Common Stock and use all reasonable efforts to cause such
registration statement to become effective as soon as practicable after the
filing thereof and to remain effective, subject to the Company's right to
withdraw any registration contemplated by Section 12.2 hereof;
(b) Prepare and file with the SEC such amendments to such registration
statement and supplements to the prospectus contained therein as may be
necessary to keep such registration statement effective;
(c) Furnish to each participating Holder and to the underwriters of
the securities being registered such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus and such other
documents as such underwriters may reasonably request in order to facilitate the
public offering of such securities;
(d) Use all reasonable efforts to register or qualify the securities
covered by such registration statement under such state securities or "Blue Sky"
laws of such jurisdictions as the participating Holders may reasonably request
within twenty (20) days prior to the original filing of such registration
statement, except that the Company shall not for any purpose be required to
qualify to do business as a foreign corporation in any jurisdiction wherein it
is not so qualified, and except that the Company shall not be required to so
register or qualify in more than twenty (20) such jurisdictions if in the good
faith judgment of the managing underwriter such additional registrations or
qualifications would be unreasonably expensive or harmful to the consummation of
the proposed offering;
-7-
<PAGE>
(e) Notify each participating Holder, promptly after the Company shall
receive notice thereof, of the time when such registration statement has become
effective or a supplement to any prospectus forming a part of such registration
statement has been filed;
(f) Notify each participating Holder promptly of any request by the
SEC for the amending or supplementing of such registration statement or
prospectus or for additional information;
(g) Prepare and file with the SEC, promptly upon the request of a
participating Holder, any amendments or supplements to such registration
statement or prospectus which, in the opinion of counsel for such Holder and
counsel for the underwriter or manager of the offering, are required under the
Securities Act or the rules and regulations thereunder in connection with the
distribution of Common Stock by such Holder;
(h) Prepare and promptly file with the SEC and promptly notify each
participating Holder of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event shall
have occurred as the result of which any such prospectus or any other prospectus
as then in effect would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading;
(i) In case a participating Holder or any underwriter for a Holder is
required to deliver a prospectus at a time when the prospectus then in
circulation is not in compliance with the Securities Act, the Company will
prepare and file such supplements or amendments to such registration statement
and such prospectus or prospectuses as may be necessary to permit compliance
with the requirements of the Securities Act;
(j) Advise each participating Holder, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use all reasonable
efforts to prevent the issuance of any stop order or to obtain its withdrawal if
such stop order should be issued;
(k) Not file any amendment or supplement to such registration
statement or prospectus to which a participating Holder shall reasonably have
objected on the grounds that such amendment or supplement does not comply in all
material respects with the requirements of the Securities Act or the rules and
regulations thereunder, after having been furnished with a copy thereof at least
two (2) business days prior to the filing thereof; and
(l) At the request of a participating Holder (i) use all reasonable
efforts to obtain and furnish on the effective date of the registration
statement or, if such registration includes an underwritten public offering, at
the closing provided for in the underwriting agreement, an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to each participating
Holder, which shall contain such opinions as are customary in an underwritten
public offering, or, if the offering is not underwritten, shall state that such
registration statement has become effective under the Securities Act and that
(or substantially to the effect that): (a) to the best of such counsel's
knowledge, no stop order suspending the effectiveness thereof has been issued
and no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act; (b) the registration statement, related
prospectus and each amendment or supplement thereto comply as to form in all
material respects with the requirements of the Securities Act and applicable
rules and regulations of the SEC thereunder (except that such counsel need
express no opinion as to financial statements, schedules or other financial or
statistical data contained therein); (c) such counsel has no reason to believe
that either the registration statement or the prospectus or any amendment or
supplement thereto (other than financial statements and schedules or financial
and statistical data, as to which such counsel need not comment) contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or
-8-
<PAGE>
necessary to make the statements therein not misleading; (d) the description in
the registration statement or prospectus or any amendment or supplement thereto
of all legal and governmental matters and all contracts and other legal
documents or instruments described therein are accurate in all material
respects; and (e) such counsel does not know of any legal or governmental
proceedings, pending or threatened, required to be described in the registration
statement or prospectus or any amendment or supplement thereto which are not
described as required, nor of any contracts or documents or instruments of the
character required to be described in the registration statement or prospectus
or amendment or supplement thereto or to be filed as exhibits to the
registration statement, which are not described and filed as required; and (ii)
use all reasonable efforts to obtain letters dated on such effective date, and
such closing date, if any, from the independent certified public accountants of
the Company, addressed to the underwriters, if any, and to each participating
Holder, stating that they are independent certified public accountants within
the meaning of the Securities Act and dealing with such matters as the
underwriters may request, or, if the offering is not underwritten, stating that
in the opinion of-such accountants, the financial statements and other financial
data pertaining to the Company included in the registration statement or the
prospectus or any amendment or supplement thereto comply in all material
respects with the applicable accounting requirements of the Securities Act; such
opinion of counsel shall additionally cover such legal matters with respect to
the registration and with respect to which such opinion is being given as a
participating Holder may reasonably request; such letter from the independent
certified public accountants shall additionally cover such other financial
matters, including information as to the period ending not more than five (5)
business days prior to the date of such letter, with respect to the registration
statement and prospectus as a participating Holder may reasonably request.
12.5 Expenses. With respect to each inclusion of Common Stock of a Holder
in a registration statement pursuant to Sections 12.1 and 12.2 hereof, all
registration expenses, fees, costs and expenses of and incidental to such
registration, including any public offering in connection therewith shall be
borne by the Company (excluding the fees and disbursements of advisors retained
by the Holder and counsel acting solely on behalf of the Holder); provided,
however, that the Holder shall bear the Holder's pro rata share of the
underwriting discount and commissions (up to a maximum aggregate amount equal to
8% of the offering price of the Holder's shares so offered). The fees, costs and
expenses of registration to be borne by the Company shall include, without
limitation, all registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company (including the cost of
any special audit requested in order to effect such registration), fees and
disbursements of counsel for the underwriter or underwriters of such securities
(if the Company and/or selling security holders are required to bear such fees
and disbursements), all legal fees and disbursements and other expenses of
complying with state securities or blue Sky laws of any jurisdiction in which
the securities to be offered are to be registered or qualified.
12.6 Indemnification of Holders. Subject to the conditions set forth below,
in connection with any registration of securities pursuant to Sections 12.1 or
12.2 hereof, the Company agrees to indemnify and hold harmless each Holder and
each person, if any, who controls the Holder (and the respective officers,
directors and agents of Holders), within the meaning of Section 15 of the
Securities Act, as follows:
(a) Against any and all loss, claim, damage and expense whatsoever
arising out or based upon (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing or defending any
litigation, commenced or threatened, or any claim whatsoever based upon) any
untrue or alleged untrue statement of a material fact contained in any
preliminary prospectus (if used prior to the effective date of the registration
statement), the registration statement or the final prospectus (as from time to
time amended and supplemented if the Company shall have filed with the SEC any
amendment thereof or amendment thereto) if used within the period during which
the Company is required to keep the registration statement or prospectus
current, or in any application or other document executed by the Company or
based upon written information furnished by the Company filed in any
jurisdiction in order to qualify the Company's securities under the securities
laws thereof; or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; or any
other violation of applicable federal or state statutory or regulatory
requirements or limitations relating to action or inaction by the
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<PAGE>
Company in the course of preparing, filing, or implementing such registered
offering; provided, however, that the indemnity agreement contained in this
Section 12.6(a) shall not apply to any loss, claim, damage, liability or action
arising out of or based upon any untrue or alleged untrue statement or omission
made in reliance upon and in conformity with any information furnished in
writing to the Company by or on behalf of the Holder expressly for use in
connection therewith;
(b) Subject to the proviso contained in the last sentence of Section
12.6(a) above, against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission or any such alleged untrue statement or
omission (including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing or defending against any such
litigation or claim) if such settlement is effected with the written consent of
the Company and no indemnity shall inure to the benefit of the Holder or any
controlling person thereof if the person asserting the claim failed to receive a
copy of the final prospectus at or prior to the written confirmation of the sale
of shares of Common Stock to such person if the untrue statement or omission had
been corrected in such final prospectus and the failure to receive such final
prospectus is not a necessary element of such person's claim;
(c) In no case shall the Company be liable under this indemnity
agreement with respect to any claim made against the Holder or any such
controlling person (or its respective officers, directors and agents) unless the
Company shall be notified, by letter or by telegram confirmed by letter, of any
claim made or action commenced against such persons, reasonably promptly (but in
any event within twenty (20) days of receipt of such claim or, in the event that
any summons or other service of process requires a responsive pleading within
thirty (30) days or less time, within ten (10) days after receipt of such
summons or other process) after such person shall have received notice of such
claim or been served with the summons or other legal process giving information
as to the nature and basis of the claim, but failure to so notify the Company
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. The Company shall be entitled to
participate at its own expense in the defense of any suit brought to enforce any
such claim, but if the Company elects to assume the defense, such defense shall
be conducted by counsel chosen by it, provided that such counsel is reasonably
satisfactory to the Holder. In the event the Company elects to assume the
defense of any such suit and retain such counsel, the Holder shall, after the
date the Holder is notified of such election, bear the fees and expenses of any
counsel thereafter retained by the Holder as well as any other expenses
thereafter incurred by the Holder in connection with the defense thereof;
provided, however, that the Company shall bear the fees and expenses of any such
separate counsel retained by the Holder if the counsel representing the Company
has a conflict of interest (which is not waived) with the Holder which would
prohibit such counsel from representing the Holder.
12.7 Indemnification of Company. Each Holder participating in any
registered offering pursuant to Section 12.1 or 12.2 above agrees to indemnify
and hold harmless the Company and each of the officers and directors and agents
of it and each other person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act against any and all such losses,
liabilities, claims, damages and expenses as are indemnified against by the
Company under Section 12.6 hereof; provided, however, that such indemnification
shall be limited to statements or omissions, if any, made (or in settlement of
any litigation effected with the written consent of the Holder alleged to have
been made) in any preliminary prospectus, the registration statement or
prospectus or any amendment or supplement thereof or any application or other
document in reliance upon, and in conformity with, written information furnished
in respect of the Holder, by or on behalf of the Holder expressly for use in any
preliminary prospectus, the registration statement or prospectus or any
amendment or supplement thereof or in any such application or other document. In
case any action shall be brought against the Company, or any other person so
indemnified based on any preliminary prospectus, the registration statement or
prospectus or any amendment or supplement thereof or any such application or
other documents, in respect of which indemnity may be sought against a Holder,
it shall have the rights and dudes given to the Company, and each other person
so indemnified shall have the rights and duties given to a Holder, by the
provisions of Section 12.6(c) hereof. The Company agrees to notify
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<PAGE>
the Holder promptly after the assertion of any claim against the Company in
connection with the sale of securities covered by this Warrant.
12.8 Future Registration Rights. The Company may agree with its
shareholders other than the Holders to allow their participation in any
registered offering which may be requested pursuant to Section 12.1 hereof,
provided all such rights of participation by shareholders other than the Holders
shall be subordinated to the rights of the participating Holders herein, in a
manner reasonably satisfactory to the Required Percentage of such Holders and
their counsel.
13. Descriptive Headings. The descriptive headings of the several sections
of this Warrant are inserted for convenience only and do not constitute a part
of this Warrant.
14. Notices. Any notice or other communication pursuant to this Warrant
shall be in writing and shall be deemed sufficiently given upon receipt, if
personally delivered or telecopied (with receipt acknowledged), or if mailed,
upon deposit with the United States Postal Service by first class, certified or
registered mail, postage prepaid, return receipt requested, addressed as
follows:
(a) If to the Company, to The Female Health Company, 875 North
Michigan Street, Suite 3660, Chicago, Illinois 60611, Attention: Secretary, or
such other address as the Company has designated in writing to the Holder.
(b) If to the Holder, to Stephen M. Dearholt, Insurance Processing
Center, 741 North Milwaukee Street, Milwaukee, Wisconsin 53202 or to such other
address as the Holder has designated in writing to the Company.
15. Replacement of Warrant. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and upon
receipt of written indemnification of the Company by the Holder in form and
substance reasonably satisfactory to the Company, the Company shall execute and
deliver to the Holder a new Warrant of like date, tenor and denomination.
16. Governing Law. This Warrant shall be construed and interpreted in
accordance with the internal laws of the State of Wisconsin.
17. Successors and Assigns. The provisions of this Warrant shall be
binding upon and inure to the benefit of the Company and the Holder and their
respective successors, assigns and transferees.
18. Further Assurances. The Company agrees that it will execute and record
such documents as the Holder shall reasonably request to secure for the Holder
any of the rights represented by this Warrant.
19. Amendment and Modifications. This Warrant may be amended, modified or
supplemented only by written agreement of the Company and the Holder.
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<PAGE>
IN WITNESS WHEREOF, The Female Health Company has caused this Warrant to be
signed by its duly authorized officer and this Warrant to be dated as of
February ___, 1999.
THE FEMALE HEALTH COMPANY
By: /s/ O. B. Parrish
---------------------------
---------------------------
Chairman of the Board
and Chief Executive Officer
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<PAGE>
EXHIBIT 8
NOTE PURCHASE AND WARRANT AGREEMENT
-----------------------------------
February 12, 1999
Stephen M. Dearholt
Insurance Processing Center
741 North Milwaukee Street
Milwaukee, Wisconsin 53202
THE FEMALE HEALTH COMPANY, a Wisconsin corporation (the "Company"), hereby
requests that you, Stephen M. Dearholt (hereinafter referred to as the
"Lender"), purchase a promissory note in the principal amount of $250,000 from
the Company on the terms and conditions set forth below.
ARTICLE I
---------
NOTE
----
1.1 Purchase of Note. On the date hereof the Lender will purchase a
promissory note from the Company in the principal amount of $250,000 (the
"Note") in the form of Exhibit A attached hereto for a purchase price of
$250,000. The Note is being executed by the Company and delivered to the
Lender against the delivery of funds to the Company in an amount equal to the
purchase price.
ARTICLE II
----------
THE WARRANT
-----------
2.1 Issuance of Warrant. On the date hereof the Company shall issue to
Lender a warrant which shall entitle the Lender to purchase 50,000 of the issued
and outstanding shares of Common Stock, $.01 par value per share, of the Company
on the date of exercise at a purchase price of $1.248 per share (subject to
adjustment as provided therein) in the form attached hereto as Exhibit B (the
"Warrant").
ARTICLE III
-----------
REPRESENTATIONS AND WARRANTIES OF COMPANY
-----------------------------------------
The Company represents and warrants to the Lender as follows:
3.1 Organization. The Company is a corporation duly organized and
existing in active status under the laws of the State of Wisconsin, and has all
requisite power and authority, corporate or otherwise, to conduct its business
and to own its properties.
3.2 Authority. The execution, delivery and performance of this Agreement,
the Note, the Warrant and the Stock Issuance Agreement between the Company and
Lender of even date herewith (the "Stock Issuance Agreement") are within the
corporate powers of the Company, have been duly authorized by all necessary
corporate action and do not and will not (i) require any consent or approval of
the stockholders of the Company; (ii) violate any provision of the amended and
restated articles of incorporation or amended and restated by-laws of the
Company or of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to the
Company; (iii) require the consent or approval of, or filing or registration
with, any governmental body, agency or authority except for filing with the
Securities and Exchange Commission, applicable
<PAGE>
state securities regulatory agencies as required to register the resale of any
of the shares issued upon exercise of the Warrant or pursuant to the Stock
Issuance Agreement under the Securities Act of 1933, as amended, and the
securities laws of all applicable states; or (iv) result in a breach of or
constitute a default under, or result in the imposition of any lien, charge or
encumbrance upon any property of the Company pursuant to, any indenture or other
agreement or instrument under which the Company is a party or by which it or its
properties may be bound or affected. This Agreement constitutes, and the Note,
the Warrant and the Stock Issuance Agreement when executed and delivered
hereunder will each constitute, legal, valid and binding obligations of the
Company enforceable in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency or similar laws now or hereafter in
effect affecting the enforceability of creditors' rights generally and subject
to general principles of equity.
3.3 Capital Stock. The authorized capital stock of the Company consists
of 15,000,000 shares of Common Stock, $.01 par value per share and 5,000,000
shares of Class A Preferred Stock, $.01 par value per share. There are
presently outstanding 10,446,227 shares of Common Stock, and 670,000 shares of
Class A Convertible Preferred Stock Series 1. Other than (i) the Warrant and
50,000 shares of Common Stock to be issued to the Lender upon certain
contingencies set forth in a Stock Issuance Agreement between the Company and
Lender of even date, (ii) other warrants to purchase shares of Common Stock
issued to the Lender pursuant to a Note Purchase and Warrant Agreements dated
March 25, 1997 and March 25, 1998, to the Lender and William Lacy pursuant to a
Note Purchase Agreement dated March 25, 1996, and to the Lender and an affiliate
of Lender pursuant to a Note Purchase and Warrant Agreement dated November 21,
1995, (iii) warrants to purchase 90,000 and 75,000 shares of common stock issued
to Malcom McGuire and Vector Securities, respectively, (iv) options to purchase
1,163,228 shares of the Company's Common Stock issued to certain employees,
officers, directors, consultants and affiliates of the Company (which number
excludes 292,000 options which have been authorized but not issued), (v)
warrants to purchase up to 107,534 shares of the Company's Common Stock related
to certain convertible debentures issued by the Company, (vi) rights to purchase
670,000 shares of the Company's Common Stock upon conversion of the Series 1
Class A Convertible Preferred Stock issued by the Company, and (vii) warrants to
purchase up to 296,000 shares of the Company's Common Stock related to the
Series 1 Class A Convertible Preferred Stock, there are no subscriptions,
options, warrants, rights or agreements (contingent or otherwise) providing for
the issuance by the Company of Common Stock or other equity securities of the
Company having rights, benefits or privileges equal or superior to that of the
Common Stock.
3.4 Full Disclosure. The Company is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and has within the previous 12 months filed with the Securities and
Exchange Commission all reports, proxy statements and other information in
respect to the Company required under the Exchange Act. No such report or
information filed with the SEC within the previous 2 years, and no information
or report furnished by the Company to the Lender in connection with the
negotiation or execution of this Agreement (all of which information or reports
so furnished are set forth in Section 5.2 hereof), contained any misstatement of
a material fact as of the date when made or omitted to state a material fact
required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading as of the date when made.
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<PAGE>
ARTICLE IV
----------
DEFAULTS
--------
4.1 Defaults. The occurrence of any one or more of the following events
shall constitute an "Event of Default":
(a) The Company shall fail to pay any principal or interest due on the
Note within 5 days of its due date;
(b) Any representation or warranty made by the Company herein shall
prove to have been false in any material respect;
(c) The Company shall: (i) fail, or admit in writing its inability,
to pay its debts as they mature; or (ii) make a general assignment for the
benefit of creditors or to an agent authorized to liquidate any substantial
amount of its property; or (iii) become the subject of an "order for relief"
within the meaning of the United States Bankruptcy Code; or (iv) become the
subject of a creditor's petition for liquidation, reorganization or to effect a
plan or other arrangement with creditors which petition has not been dismissed
or stayed within 90 days of the filing thereof; or (v) apply to a court for the
appointment of a custodian or receiver for any of its assets; or (vi) have a
custodian or receiver appointed for substantially all of its assets (with or
without its consent); provided that, if the appointment is without the Company's
consent, such appointment has not been vacated or stayed within 90 days of such
appointment; or (vii) otherwise become the subject of any insolvency proceedings
(and if such proceedings are commenced without the Company's consent, such
proceedings shall not have been dismissed within 90 days after commencement
thereof) or propose or enter into any formal or informal composition or
arrangement with its creditors.
(d) This Agreement, the Note, the Warrant, or any other warrant
described in Section 3.3(ii) hereof, shall, at any time after their respective
execution and delivery, and for any reason other than full performance thereof,
cease to be in full force and effect or be declared null and void, or the
validity or enforceability thereof or hereof shall be contested by the Company
or any shareholder of the Company, or the Company shall deny that it has any or
further liability or obligation thereunder or hereunder, as the case may be.
4.2 Acceleration of Obligations. Upon the occurrence of any Event of
Default:
(a) As to any Event of Default (other than an Event of Default under
Section 4.1(c)) and at any time thereafter during which such Event of Default is
continuing, and in each case, the Lender may, by written notice to the Company,
immediately declare the unpaid principal balance of the Note, together with all
interest accrued thereon, to be immediately due and payable; and the unpaid
principal balance of and accrued interest on such Note shall thereupon be due
and payable without further notice of any kind, all of which are hereby waived,
and notwithstanding anything to the contrary herein or in the Note contained;
(b) As to any Event of Default under Section 4.1(c), the unpaid
principal balance of the Note, together with all interest accrued thereon, shall
immediately and forthwith be due and payable, all without presentment, demand,
protest, or further notice of any kind, all of which are hereby waived,
notwithstanding anything to the contrary herein or in the Note contained; and
(c) As to each Event of Default, the Lender shall have all the
remedies for default provided by applicable law.
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<PAGE>
ARTICLE V
---------
MISCELLANEOUS
-------------
5.l Expenses: Indemnities.
(a) The Company shall pay, or reimburse the Lender for (i) all out-
of-pocket costs and expenses (including, without limitation, attorneys' fees and
expenses not to exceed $2,500) paid or incurred by the Lender in connection with
the negotiation, preparation, execution and delivery of this Agreement, the
Note, the Warrant, the Stock Issuance Agreement, and any other document required
hereunder or thereunder; (ii) all out-of-pocket costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) paid or incurred by
the Lender in connection with the negotiation, preparation, execution and
delivery of any amendment, supplement, modification or waiver of any of the
documents referenced above or before and after judgment in enforcing, protecting
or preserving his rights under this Agreement, the Note, the Warrant, the Stock
Issuance Agreement, and other documents required hereunder or thereunder; and
(iii) any and all recording and filing fees and any and all stamp, excise,
intangibles and other taxes (other than income taxes), if any, which may be
payable or determined to be payable in connection with the negotiation,
preparation, execution, delivery, administration or enforcement of this
Agreement, the Note, the Warrant, the Stock Issuance Agreement, or any other
document required hereunder or thereunder or any amendment, supplement,
modification or waiver of or to any of the foregoing, or consummation of any of
the transactions contemplated hereby or thereby, including all costs and
expenses incurred in contesting the imposition of any such tax, and any and all
liability with respect to or resulting from any delay in paying the same,
whether such taxes are levied upon the Lender, the Company or otherwise.
(b) The Company agrees to indemnify the Lender against any and all
losses, claims, damages, liabilities and expenses, (including, without
limitation, reasonable attorneys' fees and expenses) incurred by the Lender
arising out of or resulting from (i) any acquisition or attempted acquisition of
stock or assets of another person or entity by the Company or any subsidiary,
(ii) the use of any of the proceeds of the loan made hereunder by the Company
for the making or furtherance of any such acquisition or attempted acquisition,
(iii) the construction or operation of any facility owned or operated by the
Company or any subsidiary, or resulting from any pollution or other
environmental condition on the site of, or caused by, any such facility, (iv)
the negotiation, preparation, execution, delivery and enforcement of this
Agreement, the Note, the Warrant, the Stock Issuance Agreement, and any other
document required hereunder or thereunder, including without limitation any
amendment, supplement, modification or waiver of or to any of the foregoing or
the consummation or failure to consummate the transactions contemplated hereby
or thereby, or the performance by the parties of their obligations hereunder or
thereunder, (v) any claim, litigation, investigation or proceedings related to
any of the foregoing, whether or not the Lender is a party thereto; provided,
however, that such indemnity shall not apply to any such losses, claims,
damages, liabilities or related expenses arising from (A) any breach by the
Lender of his obligations under this Agreement, or in his fiduciary duties as a
director of the Company for which he would not otherwise be entitled to
indemnification as a director of the Company, (B) any commitment made by the
Lender to a person other than the Company which would be breached by the
performance of the Lender's obligations under this Agreement or (C) Lender's
gross negligence or willful misconduct; and provided further that clauses (i),
(ii) and (iii) of this paragraph shall apply only to losses, claims, damages,
liabilities and expenses arising out of or resulting from third party claims.
(c) The foregoing agreements and indemnities shall remain operative
and in full force and effect regardless of termination of this Agreement, the
consummation of or failure to consummate either the transactions contemplated by
this Agreement or any amendment, supplement, modification or waiver, the
repayment of the loan made hereunder, the invalidity or unenforceability of any
term or provision of this Agreement, the Note, the Warrant, the Stock Issuance
Agreement, or any other document required hereunder or thereunder, any
investigation made by or on behalf of the Lender, or the content or accuracy of
any representation or warranty made under this Agreement or any other document
required hereunder or thereunder.
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5.2 Securities Act of 1933. (a) With respect to the Note and the Warrant
to be issued to the Lender, the Lender hereby represents, warrants and covenants
as follows:
(i) He understands that the issuance of the Note and the Warrant
has not been registered under the Securities Act of 1933, as amended (the
"Act") or applicable state securities laws (collectively, the "Laws") on
the basis that the issuance of the Note and the Warrant is exempt from such
registration under the Act and Laws based in part upon the representations
made herein;
(ii) He does not presently intend to sell or otherwise dispose of
the Note or the Warrant being issued to him hereunder;
(iii) He is acquiring the Note and the Warrant for investment
purposes only and for his own account and not with a present view to sell
or otherwise distribute the same, and he will not sell or otherwise
distribute the Note or the Warrant without registration under the Act and
applicable Laws or pursuant to applicable exemptions therefrom;
(iv) He is an "accredited investor" under the Act and the rules
promulgated thereunder;
(v) He has been given access to and has carefully reviewed the
Company's Form 10-K and annual report to shareholders for the year ended
September 30, 1998. He desires no additional information to evaluate the
merits and risks of the issuance of the Note and the Warrant hereunder, and
he is not relying upon any other information in connection therewith.
(vi) He has been given an opportunity to ask questions of, and
receive answers from, management of the Company concerning the issuance of
the Note and the Warrant hereunder, and has been given access to all
information which he has deemed necessary to verify the accuracy of the
information furnished to him;
(vii) He has such knowledge and experience in financial and business
matters that he is capable of evaluating the merits and risks of the
transactions contemplated by this Agreement, has carefully reviewed all
information indicated above and, by virtue of such review, understands and
has evaluated the merits and risks of his participation in such
transactions and has decided to go forward with such transactions; and
(viii) He understands that the Company is relying on the accuracy of
the statements contained herein in entering into this Agreement and the
transactions contemplated herein.
5.3 Successors. The provisions of this Agreement shall inure to the
benefit of any holder of the Note or Warrant, and shall inure to the benefit of
and be binding upon any successor to any of the parties hereto. No delay on the
part of the Lender or any holder of the Note or a Warrant in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein specified are cumulative and
are not exclusive of any rights or remedies which the Lender or the holder of
the Note or a Warrant would otherwise have.
5.4 Survival. All agreements, representations and warranties made herein
shall survive the execution of this Agreement, the making of the loan hereunder
and the execution and delivery of the Note and the Warrant.
5.5 Wisconsin Law. This Agreement and the Note and Warrant issued
hereunder shall be governed by and construed in accordance with the internal
laws of the State of Wisconsin, except to the extent superseded by federal law.
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5.6 Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
5.7 Notices. All communications or notices required under this Agreement
shall be deemed to have been given on the date when deposited in the United
States mail, postage prepaid, and addressed as follows (unless and until any of
such parties advises the other in writing of a change in such address): (a) if
to the Company, with the full name and address of the Company as shown on this
Agreement below; and (b) if to the Lender, with the full name and address of the
Lender as shown on this Agreement above.
5.8 Entire Agreement; No Agency. This Agreement and the other documents
referred to herein contain the entire agreement between the Lender and the
Company with respect to the subject matter hereof, superseding all previous
communications and negotiations, and no representation, undertaking, promise or
condition concerning the subject matter hereof shall be binding upon the Lender
unless clearly expressed in this Agreement or in the other documents referred to
herein. Nothing in this Agreement or in the other documents referred to herein
and no action taken pursuant hereto shall cause either the Company or the Lender
to be treated as an agent of the other, or shall be deemed to constitute a
partnership, association, joint venture or other entity.
5.9 Consent to Jurisdiction. The parties hereto hereby consent to the
exclusive jurisdiction of any state or federal court situated in Ozaukee County
or Milwaukee County, Wisconsin, and waive any objection based on lack of
personal jurisdiction, improper venue or forums non conveniens, with regard to
any actions, claims disputes or proceedings relating to this Agreement, the
Note, the Warrant or any other document delivered hereunder or in connection
herewith, or any transaction arising from or connected to any of the foregoing.
Nothing herein shall affect the parties' rights to serve process in any manner
permitted by law.
5.10 Waiver of Jury Trial. The Company and the Lender hereby jointly and
severally waive any and all right to trial by jury in any action or proceeding
relating to this Agreement, the Note, the Warrant or any other document
delivered hereunder or in connection herewith, or any transaction arising from
or connected to any of the foregoing. The Company and the Lender each represent
that this waiver is knowingly, willingly and voluntarily given.
If the foregoing is satisfactory to you please sign the form of acceptance below
and return a signed counterpart hereof to the Company, whereupon this instrument
will evidence a binding agreement between the Lender and the Company.
Very truly yours,
THE FEMALE HEALTH COMPANY
Address: Suite 3660
875 North Michigan Avenue
Chicago, Illinois 60611
By: /s/ O. B. Parrish
----------------------------
Chairman of the Board and
Chief Executive Officer
The foregoing Agreement is hereby confirmed and accepted as of the date
thereof.
/s/ Stephen M. Dearholt
--------------------------------
Stephen M. Dearholt
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EXHIBIT 9
STOCK ISSUANCE AGREEMENT
THIS AGREEMENT, is made as of February 12, 1999 between STEPHEN M.
DEARHOLT, an adult resident of the State of Wisconsin ("Lender") and THE FEMALE
HEALTH COMPANY a Wisconsin corporation (the "Company").
RECITALS
A. The Company desires to issue and sell its Promissory Note in the
principal amount of Two Hundred Thousand Dollars ($250,000) (the "Note") to
Lender pursuant to a Note Purchase and Warrant Agreement of even date between
the Lender and the Company (the "Note Purchase and Warrant Agreement").
B. Lender has required, as a condition of providing the loan to the
Company under the Note Purchase and Warrant Agreement that the Company enter
into this Agreement and undertake the obligations and liabilities set forth
herein.
C. It is necessary and in the business interests of the Company that the
Lender enter into the Note Purchase and Warrant Agreement.
COVENANTS:
IN CONSIDERATION OF these premises and other good and valuable
consideration receipt of which is hereby acknowledged, it is agreed that:
1. Issuance and Sale of Shares. (a) The Company agrees that in the event
the Company shall default in the payment of principal due on the Note and shall
fail to pay such principal amount within five (5) days of receipt of written
notice of default from the Lender, the Company shall issue to The Lender fifty
thousand (50,000) fully paid and non-assessable shares of Common Stock, $.01 par
value per share, of the Company; provided that the Company shall issue to the
Lender a proportionately fewer or greater number of shares of such Common Stock
if the Company combines by reverse stock split or otherwise or subdivides by
stock split, stock dividend or otherwise its outstanding Common Stock. The
Company shall be obligated to issue, and the Lender shall have the right to
receive, all such shares without payment of any further consideration
whatsoever. Notwithstanding the foregoing, the Company shall remain liable for
all amounts remaining due under and in accordance with the terms of the Note.
(b) At such time, if any, as the Company shall become obligated to
issue shares of its Common Stock to the Lender pursuant to Section 1(a) of this
Agreement, the Lender shall be entitled to receive a certificate or certificates
representing such shares of Common Stock, which certificate(s) may contain a
standard legend indicating that such shares have not been registered under the
Securities Act of 1933, as amended (the "Securities Act") and prohibiting resale
thereof without registration or an opinion of counsel that an exemption from
registration is available. Subject to the Company's Amended and Restated
Articles of Incorporation, certificates for the shares of Common Stock required
to be issued hereunder shall be delivered to the Lender within a reasonable
time, not exceeding ten days, after the Company shall have become obligated to
issue such shares pursuant to Section 1(a) hereof.
<PAGE>
2. Reservation of Shares.
The Company covenants and agrees that the shares of Common Stock
issuable hereunder will, upon such issuance in accordance herewith, be duly
authorized, validly issued, fully paid and nonassessable (except as set forth in
Section 180.0622(2)(b), Wis. Stats., as amended and interpreted) and free from
all taxes, liens and charges. The Company further covenants and agrees that,
prior to the Termination Date (as hereinafter defined) it will at all times have
authorized and reserved a sufficient number of shares of its Common Stock to
provide for the issuance of the shares required by this Agreement.
3. Issuance of Preferred Stock. Prior to the Termination Date, the
Company will not issue any capital stock of any class preferred as to dividends
or as to the distribution of assets upon voluntary or involuntary liquidation,
dissolution or winding up, unless the rights of the holders thereof shall be
limited to a fixed sum or percentage of par value in respect of participation in
dividends and in the distribution of such assets.
4. Anti-Dilution Provisions. The above provisions are, however, subject
to the following:
(a) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities or assets with respect to or in
exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby the Lender shall hereafter have the right to receive upon
the basis and upon the terms and conditions specified in this Agreement and in
lieu of the shares of the Common Stock of the Company immediately theretofore
receivable hereunder, such shares of stock, securities or assets as may be
issued or payable with respect to or in exchange for a number of outstanding
shares of such Common Stock equal to the number of shares of such stock
immediately theretofore receivable hereunder had such reorganization,
reclassification, consolidation, merger or sale not taken place, and in any such
case appropriate provision shall be made with respect to the rights and
interests of the Lender hereunder to the end that the provisions hereof shall
thereafter be applicable, as nearly as may be, in relation to any shares of
stock, securities or assets thereafter issuable hereunder. The Company shall
not effect any such consolidation, merger or sale, unless prior to the
consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger or the corporation purchasing such
assets shall assume by written instrument executed and mailed to the Lender at
the last address specified pursuant to Section 11 hereof, the obligation to
issue and deliver to the Lender such shares of stock, securities or assets as,
in accordance with the foregoing provisions, he may be entitled to receive.
5. Certain Events. If any event occurs as to which the provisions for
the issuance of Common Stock set forth in this Agreement are not strictly
applicable or, if strictly applicable would not fairly protect the rights of the
Lender in accordance with the essential intent and principles of such
provisions, then the Board of Directors of the Company shall make an adjustment
in the application of such provisions, in accordance with such essential intent
and principles, so as to protect the Lender's rights as aforesaid.
6. Termination Date. The obligation of the Company to issue, and the
right of the Lender to receive, Common Stock pursuant to this Agreement shall
terminate at such time as the Company shall have made payment in full of the
Note, and such payments are not subject to any right of recovery (the
"Termination Date").
7. Issue Tax. The issuance of certificates for shares of Common Stock
pursuant to this Agreement shall be made without charge to the Lender for any
issuance tax in respect thereof.
8. Registration Rights. All references in this Section 8 to Common Stock
shall be deemed to include Other Securities as applicable.
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8.1 Demand Registration. At any time following the issuance of Common
Stock pursuant to this Agreement, the Lender may demand registration under the
Securities Act of all or part of the Common Stock which has been issued pursuant
to this Agreement, on Form S-1 or any similar long-form registration or, in the
Company's sole discretion, on Form S-2 or S-3 or any similar short-form
registration, if available under applicable rules of the SEC. The written
request to be delivered by the Lender to the Company pursuant to this Section
8.1 shall (i) specify the number of shares intended to be offered and sold by
the Lender, (ii) express the present intent of the Lender to offer such shares
for distribution, and (iii) describe the nature and method of the proposed offer
and sale thereof. The registration requested pursuant to this Section 8.1 is
referred to herein as "Demand Registration", which term shall also include any
Demand Registration as defined in any of the Lender Stock Documents referenced
in Section 8.1(a) hereof.
(a) Number of Registrations. Notwithstanding any contrary provision
contained in this Agreement (except the last sentence of this Section 8.1(a)
which shall continue to apply), the Note Purchase and Warrant Agreement between
the Company and Stephen M. Dearholt of even date, the Warrant issued by the
Company to Stephen M. Dearholt as of even date, the Note Purchase and Warrant
Agreement between the Company and Stephen M Dearholt dated as of March 25, 1998,
the Warrant issued by the Company to Stephen M. Dearholt dated as of March 25,
1998, the Stock Issuance Agreement between the Company and Stephen M. Dearholt
dated March 25, 1998, the Note Purchase and Warrant Agreement between the
Company and Stephen M. Dearholt dated as of March 25, 1997, the Warrant issued
by the Company to Stephen M. Dearholt dated as of March 25, 1997, the Note
Purchase and Warrant Agreement by and among the Company and Stephen M. Dearholt
dated as of March 25, 1996, the Warrant issued by the Company to Stephen M.
Dearholt dated as of March 25, 1996, and the Warrant issued by the Company to
Stephen M. Dearholt dated as of November 21, 1995 (collectively the "Lender
Stock Documents"), the Lender shall be entitled to an unlimited number of Demand
Registrations under all such documents, and shall be entitled to include all or
part of the stock received under any or all of such documents in any Demand
Registration; provided, however, that, except for Demand Registrations requested
pursuant to the last sentence of this Section 8.1(a), any such Demand
Registration shall include at least two hundred thousand (200,000) shares of
Common Stock (subject to adjustment pursuant to Section 4(a)). A registration
initiated as a Demand Registration may be withdrawn at any time at the request
of the Lender; provided that in the event a registration initiated as a Demand
Registration is so withdrawn, all registration expenses in connection with such
withdrawn registration shall be paid by the Lender. In the event the Lender
shall pledge or assign his rights and interests to all or part of the Common
Stock issued to him hereunder or issued to him upon the exercise of his rights
under any of the Lender Stock Documents as collateral pursuant to a borrowing,
the rights to Demand Registrations hereunder may be assigned and transferred to
a lender (and only one lender at any given time) in connection therewith and
said lender shall be entitled to request such Demand Registrations at any time
without regard to the two hundred thousand (200,000) share minimum under the
first sentence of this Section 8.1(a) and notwithstanding the provisions of the
first sentence of Section 8.1(c) below.
(b) Priority on Demand Registration. The Company will not include in
the Demand Registration any securities which are not Common Stock owned by the
Lender, without the written consent of the Lender. If the Demand Registration is
an underwritten offering, and the managing underwriters advise the Company in
writing that in their opinion the number of shares of Common Stock requested to
be included exceeds the number of shares of Common Stock which can be sold in
such offering without adversely affecting the market price of the Company's
Common Stock, the Company will include in such registration, prior to the
inclusion of any securities which are not shares of Common Stock owned by the
Lender, the number of shares of Common Stock owned by the Lender requested to be
included which in the opinion of such underwriters can be sold without such
adverse affect; and the balance of the shares of Common Stock which the Lender
requested to be included in such offering shall be withheld from sale for a
period of time requested by the underwriters, but not to exceed one hundred
twenty (120) days.
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(c) Restrictions on Demand Registration. Subject to the last sentence
of Section 8.1(a), the Company will not be obligated to effect a Demand
Registration within one hundred twenty (120) days after the effective date of a
registration in which the Lender was given an opportunity to participate in a
registered offering pursuant to Section 8.2. The Company may postpone for up to
ninety (90) days the filing or the effectiveness of a registration statement for
a Demand Registration if the Company and the Lender reasonably and in good faith
agree that such Demand Registration might have an adverse effect on any proposal
or plan by the Company to engage in any financing, acquisition of assets (other
than in the ordinary course of business) or any corporate reorganization,
merger, consolidation, tender offer or similar transaction.
(d) Selection of Underwriters. If the Demand Registration involves an
underwritten public offering, the Company will have the right to select the
investment banker(s) and manager(s) to administer the offering, subject to the
Lender's approval (which will not be unreasonably withheld) of such investment
banker(s) and managers(s).
8.2 Participation in Registered Offerings. If the Company at any time or
times proposes or is required to register any of its Common Stock or other
equity securities for public sale in an underwritten public offering for cash
(other than in connection with any stock option, bonus or other employee benefit
plan or arrangement) under the Securities Act or any applicable state securities
law, it will each such time give written notice to the Lender of its intention
to do so. Upon the written request of the Lender given within thirty (30)
business days after receipt of any such notice (which request shall state the
intended method of disposition of such equity securities and shall state in
reasonable detail, to the extent practicable, the net consideration, after all
commissions and discounts which the prospective seller expects to receive upon
such disposition), the Company shall use all reasonable efforts to cause all
such Common Stock issued hereunder which the Lender so requested to be
registered (which request will not be for less than two hundred thousand
(200,000) shares of Common Stock to be registered under the Securities Act and
any applicable state securities laws (provided, that if the managing underwriter
advises that less than all of the registered shares of equity securities should
be offered for sale so as not to materially and adversely affect the price or
salability of the offering being registered by the Company or the Lender for a
period not to exceed one hundred twenty (120) days, the Lender will withhold
from sale for such period of time such number of shares of Common Stock as the
underwriter may specify; provided further that a pro rata number of shares
proposed to be offered by the Company and all other shareholders of the Company
also shall be similarly withheld from sale), all to the extent requisite to
permit the sale or other disposition (in accordance with the intended method of
disposition thereof as aforesaid) by the prospective seller or sellers of the
securities so registered. In the event an underwriter is involved with a
registration initiated by the Company of the Common Stock, and the Lender
requests to participate in the registration, the Lender must commit to sell
through the underwriter. The Company may, in its sole discretion, withdraw any
registration contemplated by this Section 8.2 and abandon the proposed offering
in which the Lender had requested to participate without any further obligation
to the Lender with respect to such registration statement or offering; provided
however that the Lender shall be indemnified by the Company for any fees, costs
and expense of and incidental to such registration, excluding the fees and
disbursements of counsel acting solely on behalf of the Lender.
8.3 Obligations of The Lender. It shall be a condition precedent to the
obligation of the Company to register any Common Stock pursuant to Sections 8.1
and 8.2 hereof that the Lender shall (i) furnish to the Company such information
regarding the Common Stock held by him and the intended method of disposition
thereof and other information concerning the Lender as the Company shall
reasonably request and as shall be required in connection with the registration
statement to be filed by the Company; (ii) agree to abide by such additional or
customary terms affecting the proposed offering as reasonably may be requested
by the managing underwriter of such offering, including a requirement, if
applicable, to withhold (on a pro-rata basis) from the public market for a
period of at least one hundred twenty (120) days after any such offering, any
shares excluded from the offering at the instance of the underwriter as
permitted under Sections 8.1 and 8.2 hereof; and (iii) agree in writing in form
satisfactory to the
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<PAGE>
Company to pay the underwriting discounts and commissions applicable to the
Common Stock being sold by the Lender.
8.4 Registration Proceedings. If and whenever the Company is required by
the provisions of Sections 8.1 and 8.2 hereof to effect the registration of the
Common Stock under the Securities Act, until the securities covered by such
registration statement have been sold or for six (6) months after effectiveness,
whichever is the shorter period of time, the Company shall:
(a) Promptly prepare and file with the SEC a registration statement
with respect to such Common Stock and use all reasonable efforts to cause such
registration statement to become effective as soon as practicable after the
filing thereof and to remain effective, subject to the Company's right to
withdraw any registration contemplated by Section 8.2 hereof;
(b) Prepare and file with the SEC such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective;
(c) Furnish to the Lender and to the underwriters of the securities
being registered such reasonable number of copies of the registration statement,
preliminary prospectus, final prospectus and such other documents as such
underwriters may reasonably request in order to facilitate the public offering
of such securities;
(d) Use all reasonable efforts to register or qualify the securities
covered by such registration statement under such state securities or "Blue Sky"
laws of such jurisdictions as the Lender may reasonably request within twenty
(20) days prior to the original filing of such registration statement, except
that the Company shall not for any purpose be required to qualify to do business
as a foreign corporation in any jurisdiction wherein it is not so qualified, and
except that the Company shall not be required to so register or qualify in more
than twenty (20) such jurisdictions if in the good faith judgment of the
managing underwriter such additional registrations or qualifications would be
unreasonably expensive or harmful to the consummation of the proposed offering;
(e) Notify the Lender, promptly after it shall receive notice
thereof, of the time when such registration statement has become effective or a
supplement to any prospectus forming a part of such registration statement has
been filed;
(f) Notify the Lender promptly of any request by the SEC for the
amending or supplementing of such registration statement or prospectus or for
additional information;
(g) Prepare and file with the SEC, promptly upon the request of the
Lender, any amendments or supplements to such registration statement or
prospectus which, in the opinion of counsel for the Lender and counsel for the
underwriter or manager of the offering, are required under the Securities Act or
the rules and regulations thereunder in connection with the distribution of
Common Stock by the Lender;
(h) Prepare and promptly file with the SEC and promptly notify the
Lender of the filing of such amendment or supplement to such registration
statement or prospectus as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to such securities is
required to be delivered under the Securities Act, any event shall have occurred
as the result of which any such prospectus or any other prospectus as then in
effect would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading;
(i) In case the Lender or any underwriter for the Lender is required
to deliver a prospectus at a time when the prospectus then in circulation is not
in compliance with the Securities Act, the Company will prepare
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and file such supplements or amendments to such registration statement and such
prospectus or prospectuses as may be necessary to permit compliance with the
requirements of the Securities Act;
(j) Advise the Lender, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use all reasonable
efforts to prevent the issuance of any stop order or to obtain its withdrawal if
such stop order should be issued;
(k) Not file any amendment or supplement to such registration
statement or prospectus to which the Lender shall reasonably have objected on
the grounds that such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act or the rules and
regulations thereunder, after having been furnished with a copy thereof at least
two (2) business days prior to the filing thereof; and
(l) At the request of the Lender (i) use all reasonable efforts to
obtain and furnish on the effective date of the registration statement or, if
such registration includes an underwritten public offering, at the closing
provided for in the underwriting agreement, an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration,
addressed to the underwriters, if any, and to the Lender, which shall contain
such opinions as are customary in an underwritten public offering, or, if the
offering is not underwritten, shall state that such registration statement has
become effective under the Securities Act and that (or substantially to the
effect that): (a) to the best of such counsel's knowledge, no stop order
suspending the effectiveness thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Securities
Act; (b) the registration statement, related prospectus and each amendment or
supplement thereto comply as to form in all material respects with the
requirements of the Securities Act and applicable rules and regulations of the
SEC thereunder (except that such counsel need express no opinion as to financial
statements, schedules or other financial or statistical data contained therein);
(c) such counsel has no reason to believe that either the registration statement
or the prospectus or any amendment or supplement thereto (other than financial
statements and schedules or financial and statistical data, as to which such
counsel need not comment) contains any untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; (d) the description in the
registration statement or prospectus or any amendment or supplement thereto of
all legal and governmental matters and all contracts and other legal documents
or instruments described therein are accurate in all material respects; and (e)
such counsel does not know of any legal or governmental proceedings, pending or
threatened, required to be described in the registration statement or prospectus
or any amendment or supplement thereto which are not described as required, nor
of any contracts or documents or instruments of the character required to be
described in the registration statement or prospectus or amendment or supplement
thereto or to be filed as exhibits to the registration statement, which are not
described and filed as required; and (ii) use all reasonable efforts to obtain
letters dated on such effective date, and such closing date, if any, from the
independent certified public accountants of the Company, addressed to the
underwriters, if any, and to the Lender, stating that they are independent
certified public accountants within the meaning of the Securities Act and
dealing with such matters as the underwriters may request, or, if the offering
is not underwritten, stating that in the opinion of such accountants, the
financial statements and other financial data pertaining to the Company included
in the registration statement or the prospectus or any amendment or supplement
thereto comply in all material respects with the applicable accounting
requirements of the Securities Act; such opinion of counsel shall additionally
cover such legal matters with respect to the registration and with respect to
which such opinion is being given as the Lender may reasonably request; such
letter from the independent certified public accountants shall additionally
cover such other financial matters, including information as to the period
ending not more than five (5) business days prior to the date of such letter,
with respect to the registration statement and prospectus, as the Lender may
reasonably request.
8.5 Expenses. With respect to each inclusion of Common Stock of the Lender
in a registration statement pursuant to Sections 8.1 and 8.2 hereof, all
registration expenses, fees, costs and expenses of and incidental to such
registration, including any pubic offering in connection therewith, shall be
borne by the Company (including the fees
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<PAGE>
and disbursements of advisors retained by the Lender and counsel acting solely
on behalf of the Lender); provided, however, that the Lender shall bear his pro
rata share of the underwriting discount and commissions. The fees, costs and
expenses of registration to be borne by the Company shall include, without
limitation, all registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company (including the cost of
any special audit requested in order to effect such registration), fees and
disbursements of counsel for the underwriter or underwriters of such securities
(if the Company and/or selling security holders are required to bear such fees
and disbursements), all legal fees and disbursements and other expenses of
complying with state securities or "Blue Sky" laws of any jurisdiction in which
the securities to be offered are to be registered or qualified.
8.6 Indemnification of The Lender. Subject to the conditions set forth
below, in connection with any registration of securities pursuant to Sections
8.1 or 8.2 hereof, the Company agrees to indemnify and hold harmless the Lender
as follows:
(a) Against any and all loss, claim, damage and expense whatsoever
arising out or based upon (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing or defending any
litigation, commenced or threatened, or any claim whatsoever based upon) any
untrue or alleged untrue statement of a material fact contained in any
preliminary prospectus (if used prior to the effective date of the registration
statement), the registration statement or the final prospectus (as from time to
time amended and supplemented if the Company shall have filed with the SEC any
amendment thereof or amendment thereto) if used within the period during which
the Company is required to keep the registration statement or prospectus
current, or in any application or other document executed by the Company or
based upon written information furnished by the Company filed in any
jurisdiction in order to qualify the Company's securities under the securities
laws thereof; or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; or any
other violation of applicable federal or state statutory or regulatory
requirements or limitations relating to action or inaction by the Company in the
course of preparing, filing, or implementing such registered offering; provided,
however, that the indemnity agreement contained in this Section 8.6(a) shall not
apply to any loss, claim, damage, liability or action arising out of or based
upon any untrue or alleged untrue statement or omission made in reliance upon
and in conformity with any information furnished in writing to the Company by or
on behalf of the Lender expressly for use in connection therewith;
(b) Subject to the proviso contained in the last sentence of Section
8.6(a) above, against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission or any such alleged untrue statement or
omission (including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing or defending against any such
litigation or claim) if such settlement is effected with the written consent of
the Company and no indemnity shall inure to the benefit of the Lender if the
person asserting the claim failed to receive a copy of the final prospectus at
or prior to the written confirmation of the sale of shares of Common Stock to
such person if the untrue statement or omission had been corrected in such final
prospectus and the failure to receive such final prospectus is not a necessary
element of such person's claim;
(c) In no case shall the Company be liable under this indemnity
agreement with respect to any claim made against the Lender unless the Company
shall be notified, by letter or by telegram confirmed by letter, of any claim
made or action commenced against him, reasonably promptly (but in any event
within twenty (20) days of receipt of such claim or, in the event that any
summons or other service of process requires a responsive pleading within thirty
(30) days or less time, within ten (10) days after receipt of such summons or
other process) after the Lender shall have received notice of such claim or been
served with the summons or other legal process giving information as to the
nature and basis of the claim, but failure to so notify the Company shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. The Company shall be entitled
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to participate at its own expense in the defense of any suit brought to enforce
any such claim, but if the Company elects to assume the defense, such defense
shall be conducted by counsel chosen by it, provided that such counsel is
reasonably satisfactory to the Lender. In the event the Company elects to assume
the defense of any such suit and retain such counsel, the Lender shall, after
the date the Lender is notified of such election, bear the fees and expenses of
any counsel thereafter retained by the Lender as well as any other expenses
thereafter incurred by the Lender in connection with the defense thereof;
provided, however, that the Company shall bear the fees and expenses of any such
separate counsel retained by the Lender if the counsel representing the Company
has a conflict of interest (which is not waived) with the Lender which would
prohibit such counsel from representing the Lender.
8.7 Indemnification of Company. In connection with any registered offering
pursuant to Section 8.1 and 8.2 above, the Lender agrees to indemnify and hold
harmless the Company and each of the officers and directors and agents of it and
each other person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act against any and all such losses, liabilities,
claims, damages and expenses as are indemnified against by the Company under
Section 8.6 hereof; provided, however, that such indemnification shall be
limited to statements or omissions, if any, made (or in settlement of any
litigation effected with the written consent of the Lender alleged to have been
made) in any preliminary prospectus, the registration statement or prospectus or
any amendment or supplement thereof or any application or other document in
reliance upon, and in conformity with, written information furnished in respect
of the Lender, by or on behalf of the Lender expressly for use in any
preliminary prospectus, the registration statement or prospectus or any
amendment or supplement thereof or in any such application or other document. In
case any action shall be brought against the Company, or any other person so
indemnified based on any preliminary prospectus, the registration statement or
prospectus or any amendment or supplement thereof or any such application or
other documents, in respect of which indemnity may be sought against the Lender,
it shall have the rights and duties given to the Company, and each other person
so indemnified shall have the rights and duties given to the Lender, by the
provisions of Section 8.6(c) hereof. The Company agrees to notify the Lender
promptly after the assertion of any claim against the Company in connection with
the sale of securities covered by this Agreement.
8.8 Future Registration Rights. The Company may agree with its
shareholders other than the Lender to allow their participation in any
registered offering which may be requested pursuant to Section 8.1 hereof,
provided all such rights of participation by shareholders other than the Lender
shall be subordinated to the rights of the Lender herein, in a manner reasonably
satisfactory to the Lender and his counsel.
9. Definitions. When used in this Agreement, the following terms shall
have the meanings specified:
(a) "Affiliate" shall mean any Person directly or indirectly
controlling, controlled by or under direct or indirect common control with
another Person. A Person shall be deemed to control a corporation if such Person
possesses, directly or indirectly, the power to direct or cause the direction of
the management and policies of such corporation, whether through the ownership
of voting securities, by contract or otherwise.
(b) "Common Shares" shall mean and include the Company's presently
authorized shares of Common Stock and shall also include any capital stock of
any class of the Company hereafter authorized which shall not be limited to a
fixed sum or percentage of par value in respect of the rights of the holders
thereof to participate in dividends or in the distribution of assets upon the
voluntary or involuntary liquidation, dissolution or winding up of the Company;
provided that the shares issuable pursuant to this Agreement shall include
shares designated as Common Stock of the Company on the date hereof or, in case
of any reclassification of the outstanding shares thereof, the stock, securities
or assets provided for in Section 4(a) hereof.
(c) "Common Stock" shall mean the common stock, $.01 par value per
share, of the Company.
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<PAGE>
(d) "Other Securities", as used in Section 8 hereof, shall mean any
stock (other than Common Stock) and other securities of the Company or any other
Person (corporate or otherwise) which the Lender at any time shall be entitled
to receive, or shall have received, under this Agreement, in lieu of or in
addition to Common Stock, or which at any time shall be issuable or shall have
been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 4 hereof or otherwise.
(e) "Person" shall mean and include an individual, partnership,
corporation, trust, joint venture, incorporated organization and a government or
any department or agency thereof.
(f) "Termination Date" shall have the meaning assigned thereto in
Section 6 hereof.
10. Descriptive Headings. The descriptive headings of the several sections
of this Agreement are inserted for convenience only and do not constitute a part
of this Agreement.
11. Notices. Any notice or other communication pursuant to this Agreement
shall be in writing and shall be deemed sufficiently given upon receipt, if
personally delivered or telecopied (with receipt acknowledged), or if mailed,
upon deposit with the United States Postal Service by first class, certified or
registered mail, postage prepaid, return receipt requested, addressed as
follows:
(a) If to the Company, to The Female Health Company, 875 North
Michigan Street, Suite 3660, Chicago, Illinois 60611, Attention: Chairman,
or such other address as the Company has designated in writing to the
Lender.
(b) If to the Lender, to Stephen Dearholt, Insurance Processing
Center, 741 North Milwaukee Street, Milwaukee Wisconsin 53202 or to such
other address as The Lender has designated in writing to the Company.
12. Governing Law: Consent to Jurisdiction. The Company and the Lender
each hereby consents to the exclusive jurisdiction of any state or federal court
situated in Milwaukee County, Wisconsin, and waives any objection based on lack
of personal jurisdiction, improper venue or forum non conveniens, with regard to
any actions, claims, disputes or proceedings relating to this Agreement, or any
document delivered hereunder or in connection herewith, or any transaction
arising from or connected to any of the foregoing. Nothing herein shall affect
either party's right to serve process in any manner permitted by law, or limit
either party's right to bring proceedings against the other or their property or
assets in the competent courts of any other jurisdiction or jurisdictions. This
Agreement shall be construed and interpreted in accordance with the internal
laws of the State of Wisconsin.
13. Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors and assigns.
14. Further Assurances. The Company agrees that it will execute and record
such documents as the Lender shall reasonably request to secure for the Lender
any of the rights represented by this Agreement.
15. Entire Agreement: Amendment and Modifications. This Agreement
constitutes the entire agreement between the Lender and the Company with respect
to the subject matter hereof, superseding all previous communications and
negotiations, and no representation, understanding, promise or condition
concerning the subject matter hereof shall be binding upon either party unless
expressed herein. This Agreement may be amended, modified or supplemented only
by written agreement of the Company and the Lender.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE FEMALE HEALTH COMPANY
By:/s/ O. B. Parrish
-----------------
Chairman of the Board and
Chief Executive Officer
/s/ Stephen M. Dearholt
-----------------------
Stephen M. Dearholt
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<PAGE>
EXHIBIT 10
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAW. THIS WARRANT AND ANY
INTEREST HEREIN MAY BE OFFERED, TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF ONLY
IF REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR IF AN EXEMPTION
FROM REGISTRATION IS AVAILABLE, AND ONLY IN STRICT COMPLIANCE WITH APPLICABLE
STATE SECURITIES LAWS AND REGULATIONS.
================================================================================
WARRANT
FOR THE PURCHASE OF
COMMON STOCK
OF
THE FEMALE HEALTH COMPANY, INC.
Warrant Number 7
================================================================================
THIS CERTIFIES THAT, FOR VALUE RECEIVED, Stephen M. Dearholt, or assigns,
is entitled to subscribe for and purchase from The Female Health Company, Inc. a
Wisconsin corporation (the Company"), 200,000 shares of the fully paid and non-
assessable shares of Common Stock, $.01 par value per share, of the Company, at
the Purchase Price (as hereinafter defined) per share.
This Warrant and all warrants issued in substitution or exchange for all or
part hereof are herein individually called a "Warrant" and collectively the
"Warrants".
1. Definitions. When used in this Warrant, the following terms shall have
the meanings specified:
(a) "Affiliate" shall mean any Person directly or indirectly
controlling, controlled by or under direct or indirect common control with
another Person. A Person shall be deemed to control a corporation if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such corporation, whether through
the ownership of voting securities, by contract or otherwise.
(b) "Common Shares" shall mean and include the Company's presently
authorized shares of Common Stock and shall also include any capital stock of
any class of the Company hereafter authorized which shall not be limited to a
fixed sum or percentage of par value in respect of the rights of the holders
thereof to participate in dividends or in the distribution of assets upon the
voluntary or involuntary liquidation, dissolution or winding up of the Company;
provided that the shares purchasable pursuant to this Warrant shall include
shares designated as Common Stock of the Company on the date of original issue
of this Warrant or, in case of any reclassification of the outstanding shares
thereof, the stock, securities or assets provided for in Section 5(a) hereof.
<PAGE>
(c) "Common Stock" shall mean the common stock, $.01 par value per
share, of the Company.
(d) "Expiration Date" shall mean the earliest to occur of the
following: (i) the exercise of all of the rights to purchase Common Stock
represented by this Warrant; or (ii) March 25, 2008.
(e) "Holder" shall mean Stephen M. Dearholt and any permitted
transferee or assignee of all or part of this Warrant and the rights hereunder;
provided that, as used in Section 12 hereof such term shall also include any
holder or holders of Common Stock (or Other Securities) issued on the exercise
of this Warrant other than Persons who received such Common Stock (or Other
Securities) in a public offering or pursuant to Rule 144 promulgated under the
Securities Act of 1933, as amended.
(f) "Holder Group" shall have the meaning assigned thereto in Section
10 hereof.
(g) "Purchase Price" shall mean the per share purchase price of $1.16
(subject to adjustment under Section 5) to be paid for shares of Common Stock
purchased pursuant to the exercise of this Warrant.
(h) "Other Securities", as used in Section 12 hereof, shall mean any
stock (other than Common Stock) and other securities of the Company or any other
Person (corporate or otherwise) which the Holder of this Warrant at any time
shall be entitled to receive, or shall have received, on the exercise of this
Warrant, in lieu of or in addition to Common Stock, or which at any time shall
be issuable or shall have been issued in exchange for or in replacement of
Common Stock or Other Securities pursuant to Section 5 hereof or otherwise.
(i) "Person shall mean and include an individual, partnership,
corporation, trust, joint venture, incorporated organization and a government or
any department or agency thereof.
2. Exercise: Issuance of Certificates: Payment for Shares. This Warrant
may be exercised by the Holder, in whole or in part, at any time and from time
to time on or after March 25, 1999, by the surrender of this Warrant (properly
endorsed if required), and payment by the Holder to the Company of the Purchase
Price for each share of Common Stock purchased with respect to such exercise by
wire transfer or certified or cashiers check. Upon such surrender and payment,
the Holder shall be entitled to receive a certificate or certificates
representing the shares of Common Stock so purchased, which certificate(s) may
contain a standard legend indicating that such shares have not been registered
under the Securities Act and prohibiting resale thereof without registration or
an opinion of counsel that an exemption from registration is available. The
Company agrees that the shares so purchased shall be deemed to be issued to the
Holder as the record owner of such shares as of the close of business on the
date on which this Warrant shall have been surrendered and payment made for such
shares as aforesaid. Subject to the Company's Amended and Restated Articles of
Incorporation, certificates for the shares of Common Stock so purchased shall be
delivered to the Holder within a reasonable time, not exceeding ten days, after
the rights represented by this Warrant shall have been so exercised. If the
rights of the Holder of this Warrant are exercised in part, the number of shares
of Common Stock which thereafter may be purchased pursuant to this Warrant shall
be reduced accordingly and the Company shall reissue a Warrant or Warrants of
like tenor representing in the aggregate the right to purchase the number of
shares of Common Stock as so reduced.
3. Affirmative Covenants.
(a) The Company covenants and agrees that the shares of Common Stock
issuable upon exercise of the rights represented by this Warrant will, upon such
exercise and issuance in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable (except as set forth in Section
180.0622(2)(b), Wis. Stats., as amended and interpreted) and free from all
taxes, liens and charges with respect to the issue. The Company further
covenants and agrees that, until the Expiration Date, the Company will at all
times have authorized, and reserved for
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<PAGE>
the purpose of issue upon total or partial exercise of the rights represented by
this Warrant, a sufficient number of shares of its Common Stock to provide for
the exercise of the rights represented by this Warrant.
(b) The Company further covenants and agrees that, until the
Expiration Date, the Company will deliver to the Holder copies of all reports
and information filed by the Company with the Securities and Exchange Commission
("SEC") pursuant to the Securities Exchange Act of 1934, as amended, within 10
days after receiving a written request from the Holder.
4. Issuance of Preferred Stock. So long as this Warrant remains
outstanding, the Company will not issue any capital stock of any class preferred
as to dividends or as to the distribution of assets upon voluntary or
involuntary liquidation, dissolution or winding up, unless the rights of the
holders thereof shall be limited to a fixed sum or percentage of par value in
respect of participation in dividends and in the distribution of such assets.
5. Anti-Dilution Provisions. The above provisions are, however, subject
to the following:
(a) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities or assets with respect to or in
exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby the Holder hereof shall hereafter have the right to
purchase and receive upon the basis and upon the terms and conditions specified
in this Warrant and in lieu of the shares of the Common Stock of the Company
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby, such shares of stock, securities or assets as may be
issued or payable with respect to or in exchange for a number of outstanding
shares of such Common Stock equal to the number of shares of such stock
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby had such reorganization, reclassification,
consolidation, merger or sale not taken place, and in any such case appropriate
provision shall be made with respect to the rights and interests of the Holder
of this Warrant to the end that the provisions hereof shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock, securities
or assets thereafter deliverable upon the exercise hereof, together with such
adjustment in the Purchase Price as may be applicable with respect thereto so
that the aggregate price to be paid for shares issued pursuant to this Warrant
shall be neither increased nor decreased. The Company shall not effect any such
consolidation, merger or sale, unless prior to the consummation thereof the
successor corporation (if other than the Company) resulting from such
consolidation or merger or the corporation purchasing such assets shall assume
by written instrument executed and mailed to the Holder hereof at the last
address of such Holder appearing on the books of the Company, the obligation to
deliver to such Holder such shares of stock, securities or assets as, in
accordance with the foregoing provisions, such Holder may be entitled to
purchase.
(b) In case any time:
(l) the Company shall declare any cash dividend on its Common Stock at
a rate in excess of the rate of the last cash dividend theretofore paid;
(2) the Company shall pay any dividend payable in stock upon its
Common Stock, make any distribution (other than regular cash dividends) to the
holders of its Common Stock or redeem any shares of its Common Stock;
(3) the Company shall offer for subscription pro rata to the holders
of its Common Stock any additional shares of stock of any class or other rights;
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<PAGE>
(4) there shall be any capital reorganization, reclassification of the
capital stock of the Company, or consolidation or merger of the Company with, or
sale of all or substantially all of its assets to another corporation; or
(5) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give written notice,
by first class mail, postage prepaid, addressed to the Holder of this Warrant at
the address of such Holder as shown on the books of the Company, of the date on
which (aa) the books of the Company shall close or a record shall be taken for
such dividend, distribution or subscription rights, or (bb) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of Common Stock of record shall participate in
such dividend distribution or subscription rights, or shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, as the case may be. Such written notice shall be
given at least 15 days prior to the action in question and not less than 15 days
prior to the record date or the date on which the Company's transfer books are
closed in respect thereto.
6. Certain Events. If any event occurs as to which the provisions of
this Warrant are not strictly applicable or, if strictly applicable would not
fairly protect the rights of the Holder in accordance with the essential intent
and principles of such provisions, then the Board of Directors of the Company
shall make an adjustment in the application of such provisions, in accordance
with such essential intent and principles, so as to protect the Holder's rights
as aforesaid.
7. Term of Warrant. This Warrant shall remain outstanding and
exercisable until the Expiration Date. To the extent not previously exercised,
the rights to purchase Common Stock represented by this Warrant shall thereupon
terminate.
8. Issue Tax. The issuance of certificates for shares of Common Stock
upon the total or partial exercise of this Warrant shall be made without charge
to the Holder for any issuance tax in respect thereof.
9. Closing of Books. The Company will at no time close its transfer books
against the transfer of this Warrant or act in any manner which interferes with
the timely exercise of the rights represented by this Warrant.
10. Transfer of Warrant. Subject to any registration or qualification
requirements under the Securities Act and applicable state securities laws, this
Warrant and all rights hereunder are transferable, in whole or in part, without
charge to the Holder, by the Holder in person or by duly authorized attorney,
upon surrender of this Warrant to the Company properly endorsed; provided that
the Company may require in connection with such transfer an opinion of counsel
to the effect that such transfer qualifies for an exemption from the
registration requirements of the Securities Act. If this Warrant is transferred
in part in accordance with the terms hereof, the Company shall reissue a Warrant
or Warrants of like tenor representing in the aggregate the right to purchase
the number of shares of Common Stock represented by this Warrant immediately
prior to such transfer and thereafter the Holder and all transferees and
assignees shall constitute the "Holder Group" for purposes of Section 12 hereof.
11. No Voting Rights. This Warrant shall not entitle the Holder to any
voting rights as a shareholder of the Company.
12. Registration Rights. All references in this Section 12 to Common
Stock shall be deemed to include Other Securities as applicable.
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<PAGE>
12.1 Demand Registration. At any time (whether before or after the
Expiration Date) following the exercise of the right to purchase Common Stock
pursuant to this Warrant, a Holder may demand registration under the Securities
Act of 1933, as amended (the "Securities Act") of the resale of all or part of
the Common Stock issuable or which has been issued upon exercise of this
Warrant, on Form S-1 or any similar long-form registration or, in the Company's
sole discretion, on Form S-2 or S-3 or any similar short-form registration, if
available under applicable rules of the SEC. If such request is made by less
than all Holders, the Company shall send written notice of such registration
request to the remaining Holders within 15 days of receipt of the initial
registration request. Unless a remaining Holder shall deliver to the Company,
within 20 days after such notice is sent by the Company, a written request for
inclusion in the registration demanded by the initial request of all or part of
the Common Stock issuable or which has been issued upon exercise of the Warrant
held by such remaining Holder, all rights of such remaining Holder under this
Section 12.1 shall be terminated. The written request to be delivered by a
Holder to the Company pursuant to this Section 12.1 shall (i) specify the number
of shares intended to be offered and sold by the Holder, (ii) express the
present intent of the Holder to offer such shares for distribution, and (iii)
describe the nature and method of the proposed offer and sale thereof. The
registration requested pursuant to this Section 12.1 is referred to herein as
"Demand Registration", which term shall also include any Demand Registration as
defined in any of the Dearholt Stock Documents referenced in Section 12.1(a)
hereof.
(a) Number of Registrations. Notwithstanding any contrary provision
contained in this document, the Note Purchase and Warrant Agreement between the
Company and Stephen M. Dearholt of even date, the Stock Issuance Agreement
between such parties of even date (the "1999 Stock Issuance Agreement"), and
such other documents, agreements and warrants that the Holder may demand
registration under the Securities Act (collectively, the "Dearholt Stock
Documents"), the Holder Group shall be entitled to an unlimited number of Demand
Registrations under all such Dearholt Stock Documents, and shall be entitled to
include all or part of the stock received under any or all of such Dearholt
Stock Documents in any Demand Registration, as the Holder Group shall request
from time to time; provided, however, that, except for Demand Registrations
requested pursuant to the last sentence of this Section 12.1(a), any such Demand
Registration shall include at least two hundred thousand (200,000) shares of
Common Stock (subject to adjustment pursuant to Section 5(a)). A registration
initiated as a Demand Registration may be withdrawn at any time at the request
of the Holders of a majority of the shares of the Common Stock requested to be
included in such Demand Registration (the "Required Percentage"); provided that
in the event a registration initiated as a Demand Registration is so withdrawn,
all expenses in connection with such withdrawn registration (including, without
limitation, reasonable fees of counsel and accountants for the Company) shall be
paid by the participating Holders, pro rata. In the event Stephen M. Dearholt
shall pledge or assign his rights and interests to all or part of the Common
Stock issued to him upon exercise of this Warrant, or upon exercise of his
rights under any of the Dearholt Stock Documents, as collateral pursuant to a
borrowing, the rights to Demand Registrations hereunder may be assigned and
transferred to said lender (and only one lender at any given time) in connection
therewith, and said lender shall be entitled to request such Demand
Registrations at any time, without regard to the two hundred thousand (200,000)
share minimum under the first sentence of this Section 12.1(a), and
notwithstanding the provisions of the first sentence of Section 12.1(c) below.
(b) Priority on Demand Registrations. The Company will not include in
the Demand Registration any securities which are not Common Stock owned by a
Holder, without the written consent of the Required Percentage of Holders. If
the Demand Registration is an underwritten offering, and the managing
underwriters advise the Company in writing that in their opinion the number of
shares of Common Stock requested to be included exceeds the number of shares of
Common Stock which can be sold in such offering without adversely affecting the
market price of the Company's Common Stock, the Company will include in such
registration (pro rata from shares of Common Stock requested to be included by
each participating Holder), prior to the inclusion of any securities which are
not shares of Common Stock owned by a Holder, the number of shares of Common
Stock owned by the Holders requested to be included which in the opinion of such
underwriters can be sold without such adverse
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<PAGE>
affect; and the balance of the shares of Common Stock which Holder requested to
be included in such offering shall be withheld from sale for a period of time
requested by the underwritten, but not to exceed one hundred twenty (120) days.
(c) Restrictions on Demand Registration. Subject to the next following
sentence and the last sentence of Section 12.1(a) above, the Company will not be
obligated to effect a Demand Registration within one hundred twenty (120) days
after the effective date of a registration in which the Holder was given an
opportunity to participate in a registered offering pursuant to Section 12.2
hereof. In the event that a Holder requests to participate in a registration
under Section 12.2 hereof and satisfies the conditions of Section 12.3, and for
whatever reason all of the shares of Common Stock which such Holder so requests
to be registered are not registered or are not permitted to be offered for sale
and sold prior to shares of Common Stock or other equity securities being
registered and offered by the Company in such registration, then the provisions
of the first sentence of this Section 12.1(c) shall not apply, and the Company
shall be obligated to effect a Demand Registration requested by such Holder as
soon as practicable in accordance with the terms hereof. The Company may
postpone for up to ninety (90) days the filing or the effectiveness of a
registration statement for a Demand Registration if the Company and the Required
Percentage of Holders reasonably and in good faith agree that such Demand
Registration might have an adverse effect on any proposal or plan by the Company
to engage in any financing, acquisition of assets (other than in the ordinary
course of business) or any corporate reorganization, merger, consolidation,
tender offer or similar transaction.
(d) Selection of Underwriters. If the Demand Registration involves an
underwritten public offering, the Company will have the right to select the
investment banker(s) and manager(s) to administer the offering, subject to the
approval of the Required Percentage of Holders (which will not be unreasonably
withheld) of such investment banker(s) and managers(s).
12.2 Participation in Registered Offerings. If the Company at any time or
times proposes or is required to register any of its Common Stock or other
equity securities for public sale in an underwritten public offering for cash
(other than in connection with any stock option, bonus or other employee benefit
plan or arrangement) under the Securities Act or any applicable state securities
law, it will each such time give written notice to each Holder of its intention
to do so. Upon the written request of a Holder given within thirty (30)
business days after receipt of any such notice (which request shall state the
intended method of disposition of such equity securities and shall state in
reasonable detail, to the extent practicable, the net consideration, after all
commissions and discounts which the prospective seller or sellers expect to
receive upon such disposition), the Company shall use all reasonable efforts to
cause all such Common Stock which the Holder so requested to be registered
(which request will not be for less than two hundred thousand (200,000) shares
of Common Stock) to be registered under the Securities Act and any applicable
state securities laws (provided, that if the managing underwriter advises that
less than all of the registered shares of equity securities should be offered
for sale so as not to materially and adversely affect the price or salability of
the offering being registered by the Company or the participating Holders for a
period not to exceed one hundred twenty (120) days, the participating Holders
will, if requested by the Company, withhold from sale for such period of time
such number of shares of Common Stock (pro rata from the shares of Common Stock
requested to be included by the participating Holders) as the underwriter may
specify; provided further that in such event a pro rata number of shares
proposed to be offered by the Company and all other shareholders of the Company
also shall be similarly withheld from sale), all to the extent requisite to
permit the sale or other disposition (in accordance with the intended method of
disposition thereof as aforesaid) by the prospective seller or sellers of the
securities so registered. In the event an underwriter is involved with a
registration initiated by the Company of the Common Stock, and a Holder requests
to participate in the registration, the Holder must commit to sell through the
underwriter. The Company may, in its sole discretion, withdraw any registration
contemplated by this Section 12.2 and abandon the proposed offering in which a
Holder had requested to participate without any further obligation to such
Holder with respect to such registration statement or offering; provided however
that such Holder shall be indemnified by
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<PAGE>
the Company for any fees, costs and expense of and incidental to such
registration, excluding the fees and disbursements of counsel acting solely on
behalf of such Holder.
12.3 Obligations of the Holder. It shall be a condition precedent to the
obligation of the Company to register any Common Stock of a Holder pursuant to
Sections 12.1 and 12.2 hereof that such Holder shall (i) furnish to the Company
such information regarding the Common Stock held by it and the intended method
of disposition thereof and other information concerning such Holder as the
Company shall reasonably request and as shall be required in connection with the
registration statement to be filed by the Company; (ii) agree to abide by such
additional or customary terms affecting the proposed offering as reasonably may
be requested by the managing underwriter of such offering, including a
requirement, if applicable, to withhold (on a pro-rata basis) from the public
market for a period of at least one hundred twenty (120) days after any such
offering, any shares excluded from the offering at the instance of the
underwriter as permitted under Sections 12.1 and 12.2 hereof; and (iii) agree in
writing in form satisfactory to the Company to pay the underwriting discounts
and commissions applicable to the Common Stock being sold by such Holder
(subject to the maximum amounts set forth in Section 12.5 hereof).
12.4 Registration Proceedings. If and whenever the Company is required by
the provisions of Sections 12.1 and 12.2 hereof to effect the registration of
the Common Stock under the Securities Act, until the securities covered by such
registration statement have been sold or for six (6) months after effectiveness,
whichever is the shorter period of time, the Company shall:
(a) Promptly prepare and file with the SEC a registration statement
with respect to such Common Stock and use all reasonable efforts to cause such
registration statement to become effective as soon as practicable after the
filing thereof and to remain effective, subject to the Company's right to
withdraw any registration contemplated by Section 12.2 hereof;
(b) Prepare and file with the SEC such amendments to such registration
statement and supplements to the prospectus contained therein as may be
necessary to keep such registration statement effective;
(c) Furnish to each participating Holder and to the underwriters of
the securities being registered such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus and such other
documents as such underwriters may reasonably request in order to facilitate the
public offering of such securities;
(d) Use all reasonable efforts to register or qualify the securities
covered by such registration statement under such state securities or "Blue Sky"
laws of such jurisdictions as the participating Holders may reasonably request
within twenty (20) days prior to the original filing of such registration
statement, except that the Company shall not for any purpose be required to
qualify to do business as a foreign corporation in any jurisdiction wherein it
is not so qualified, and except that the Company shall not be required to so
register or qualify in more than twenty (20) such jurisdictions if in the good
faith judgment of the managing underwriter such additional registrations or
qualifications would be unreasonably expensive or harmful to the consummation of
the proposed offering;
(e) Notify each participating Holder, promptly after the Company shall
receive notice thereof, of the time when such registration statement has become
effective or a supplement to any prospectus forming a part of such registration
statement has been filed;
(f) Notify each participating Holder promptly of any request by the
SEC for the amending or supplementing of such registration statement or
prospectus or for additional information;
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<PAGE>
(g) Prepare and file with the SEC, promptly upon the request of a
participating Holder, any amendments or supplements to such registration
statement or prospectus which, in the opinion of counsel for such Holder and
counsel for the underwriter or manager of the offering, are required under the
Securities Act or the rules and regulations thereunder in connection with the
distribution of Common Stock by such Holder;
(h) Prepare and promptly file with the SEC and promptly notify each
participating Holder of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event shall
have occurred as the result of which any such prospectus or any other prospectus
as then in effect would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading;
(i) In case a participating Holder or any underwriter for a Holder is
required to deliver a prospectus at a time when the prospectus then in
circulation is not in compliance with the Securities Act, the Company will
prepare and file such supplements or amendments to such registration statement
and such prospectus or prospectuses as may be necessary to permit compliance
with the requirements of the Securities Act;
(j) Advise each participating Holder, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use all reasonable
efforts to prevent the issuance of any stop order or to obtain its withdrawal if
such stop order should be issued;
(k) Not file any amendment or supplement to such registration
statement or prospectus to which a participating Holder shall reasonably have
objected on the grounds that such amendment or supplement does not comply in all
material respects with the requirements of the Securities Act or the rules and
regulations thereunder, after having been furnished with a copy thereof at least
two (2) business days prior to the filing thereof; and
(l) At the request of a participating Holder (i) use all reasonable
efforts to obtain and furnish on the effective date of the registration
statement or, if such registration includes an underwritten public offering, at
the closing provided for in the underwriting agreement, an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to each participating
Holder, which shall contain such opinions as are customary in an underwritten
public offering, or, if the offering is not underwritten, shall state that such
registration statement has become effective under the Securities Act and that
(or substantially to the effect that): (a) to the best of such counsel's
knowledge, no stop order suspending the effectiveness thereof has been issued
and no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act; (b) the registration statement, related
prospectus and each amendment or supplement thereto comply as to form in all
material respects with the requirements of the Securities Act and applicable
rules and regulations of the SEC thereunder (except that such counsel need
express no opinion as to financial statements, schedules or other financial or
statistical data contained therein); (c) such counsel has no reason to believe
that either the registration statement or the prospectus or any amendment or
supplement thereto (other than financial statements and schedules or financial
and statistical data, as to which such counsel need not comment) contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
(d) the description in the registration statement or prospectus or any amendment
or supplement thereto of all legal and governmental matters and all contracts
and other legal documents or instruments described therein are accurate in all
material respects; and (e) such counsel does not know of any legal or
governmental proceedings, pending or threatened, required to be described in the
registration statement or prospectus or any amendment or supplement thereto
which are not described as required, nor of any contracts or documents or
instruments of the character required to be described in the registration
statement or prospectus or amendment or supplement thereto or to be filed as
exhibits to the registration statement, which are not
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<PAGE>
described and filed as required; and (ii) use all reasonable efforts to obtain
letters dated on such effective date, and such closing date, if any, from the
independent certified public accountants of the Company, addressed to the
underwriters, if any, and to each participating Holder, stating that they are
independent certified public accountants within the meaning of the Securities
Act and dealing with such matters as the underwriters may request, or, if the
offering is not underwritten, stating that in the opinion of-such accountants,
the financial statements and other financial data pertaining to the Company
included in the registration statement or the prospectus or any amendment or
supplement thereto comply in all material respects with the applicable
accounting requirements of the Securities Act; such opinion of counsel shall
additionally cover such legal matters with respect to the registration and with
respect to which such opinion is being given as a participating Holder may
reasonably request; such letter from the independent certified public
accountants shall additionally cover such other financial matters, including
information as to the period ending not more than five (5) business days prior
to the date of such letter, with respect to the registration statement and
prospectus as a participating Holder may reasonably request.
12.5 Expenses. With respect to each inclusion of Common Stock of a Holder
in a registration statement pursuant to Sections 12.1 and 12.2 hereof, all
registration expenses, fees, costs and expenses of and incidental to such
registration, including any public offering in connection therewith shall be
borne by the Company (excluding the fees and disbursements of advisors retained
by the Holder and counsel acting solely on behalf of the Holder); provided,
however, that the Holder shall bear the Holder's pro rata share of the
underwriting discount and commissions (up to a maximum aggregate amount equal to
8% of the offering price of the Holder's shares so offered). The fees, costs
and expenses of registration to be borne by the Company shall include, without
limitation, all registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company (including the cost of
any special audit requested in order to effect such registration), fees and
disbursements of counsel for the underwriter or underwriters of such securities
(if the Company and/or selling security holders are required to bear such fees
and disbursements), all legal fees and disbursements and other expenses of
complying with state securities or blue Sky laws of any jurisdiction in which
the securities to be offered are to be registered or qualified.
12.6 Indemnification of Holders. Subject to the conditions set forth
below, in connection with any registration of securities pursuant to Sections
12.1 or 12.2 hereof, the Company agrees to indemnify and hold harmless each
Holder and each person, if any, who controls the Holder (and the respective
officers, directors and agents of Holders), within the meaning of Section 15 of
the Securities Act, as follows:
(a) Against any and all loss, claim, damage and expense whatsoever
arising out or based upon (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing or defending any
litigation, commenced or threatened, or any claim whatsoever based upon) any
untrue or alleged untrue statement of a material fact contained in any
preliminary prospectus (if used prior to the effective date of the registration
statement), the registration statement or the final prospectus (as from time to
time amended and supplemented if the Company shall have filed with the SEC any
amendment thereof or amendment thereto) if used within the period during which
the Company is required to keep the registration statement or prospectus
current, or in any application or other document executed by the Company or
based upon written information furnished by the Company filed in any
jurisdiction in order to qualify the Company's securities under the securities
laws thereof; or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; or any
other violation of applicable federal or state statutory or regulatory
requirements or limitations relating to action or inaction by the Company in the
course of preparing, filing, or implementing such registered offering; provided,
however, that the indemnity agreement contained in this Section 12.6(a) shall
not apply to any loss, claim, damage, liability or action arising out of or
based upon any untrue or alleged untrue statement or omission made in reliance
upon and in conformity with any information furnished in writing to the Company
by or on behalf of the Holder expressly for use in connection therewith;
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<PAGE>
(b) Subject to the proviso contained in the last sentence of Section
12.6(a) above, against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission or any such alleged untrue statement or
omission (including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing or defending against any such
litigation or claim) if such settlement is effected with the written consent of
the Company and no indemnity shall inure to the benefit of the Holder or any
controlling person thereof if the person asserting the claim failed to receive a
copy of the final prospectus at or prior to the written confirmation of the sale
of shares of Common Stock to such person if the untrue statement or omission had
been corrected in such final prospectus and the failure to receive such final
prospectus is not a necessary element of such person's claim;
(c) In no case shall the Company be liable under this indemnity
agreement with respect to any claim made against the Holder or any such
controlling person (or its respective officers, directors and agents) unless the
Company shall be notified, by letter or by telegram confirmed by letter, of any
claim made or action commenced against such persons, reasonably promptly (but in
any event within twenty (20) days of receipt of such claim or, in the event that
any summons or other service of process requires a responsive pleading within
thirty (30) days or less time, within ten (10) days after receipt of such
summons or other process) after such person shall have received notice of such
claim or been served with the summons or other legal process giving information
as to the nature and basis of the claim, but failure to so notify the Company
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. The Company shall be entitled to
participate at its own expense in the defense of any suit brought to enforce any
such claim, but if the Company elects to assume the defense, such defense shall
be conducted by counsel chosen by it, provided that such counsel is reasonably
satisfactory to the Holder. In the event the Company elects to assume the
defense of any such suit and retain such counsel, the Holder shall, after the
date the Holder is notified of such election, bear the fees and expenses of any
counsel thereafter retained by the Holder as well as any other expenses
thereafter incurred by the Holder in connection with the defense thereof;
provided, however, that the Company shall bear the fees and expenses of any such
separate counsel retained by the Holder if the counsel representing the Company
has a conflict of interest (which is not waived) with the Holder which would
prohibit such counsel from representing the Holder.
12.7 Indemnification of Company. Each Holder participating in any
registered offering pursuant to Section 12.1 or 12.2 above agrees to indemnify
and hold harmless the Company and each of the officers and directors and agents
of it and each other person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act against any and all such losses,
liabilities, claims, damages and expenses as are indemnified against by the
Company under Section 12.6 hereof; provided, however, that such indemnification
shall be limited to statements or omissions, if any, made (or in settlement of
any litigation effected with the written consent of the Holder alleged to have
been made) in any preliminary prospectus, the registration statement or
prospectus or any amendment or supplement thereof or any application or other
document in reliance upon, and in conformity with, written information furnished
in respect of the Holder, by or on behalf of the Holder expressly for use in any
preliminary prospectus, the registration statement or prospectus or any
amendment or supplement thereof or in any such application or other document.
In case any action shall be brought against the Company, or any other person so
indemnified based on any preliminary prospectus, the registration statement or
prospectus or any amendment or supplement thereof or any such application or
other documents, in respect of which indemnity may be sought against a Holder,
it shall have the rights and duties given to the Company, and each other person
so indemnified shall have the rights and dudes given to a Holder, by the
provisions of Section 12.6(c) hereof. The Company agrees to notify the Holder
promptly after the assertion of any claim against the Company in connection with
the sale of securities covered by this Warrant.
12.8 Future Registration Rights. The Company may agree with its
shareholders other than the Holders to allow their participation in any
registered offering which may be requested pursuant to Section 12.1 hereof,
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<PAGE>
provided all such rights of participation by shareholders other than the Holders
shall be subordinated to the rights of the participating Holders herein, in a
manner reasonably satisfactory to the Required Percentage of such Holders and
their counsel.
13. Descriptive Headings. The descriptive headings of the several
sections of this Warrant are inserted for convenience only and do not constitute
a part of this Warrant.
14. Notices. Any notice or other communication pursuant to this Warrant
shall be in writing and shall be deemed sufficiently given upon receipt, if
personally delivered or telecopied (with receipt acknowledged), or if mailed,
upon deposit with the United States Postal Service by first class, certified or
registered mail, postage prepaid, return receipt requested, addressed as
follows:
(a) If to the Company, to The Female Health Company, 875 North
Michigan Street, Suite 3660, Chicago, Illinois 60611, Attention: Secretary, or
such other address as the Company has designated in writing to the Holder.
(b) If to the Holder, to Stephen M. Dearholt, Insurance Processing
Center, 741 North Milwaukee Street, Milwaukee, Wisconsin 53202 or to such other
address as the Holder has designated in writing to the Company.
15. Replacement of Warrant. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and upon
receipt of written indemnification of the Company by the Holder in form and
substance reasonably satisfactory to the Company, the Company shall execute and
deliver to the Holder a new Warrant of like date, tenor and denomination.
16. Governing Law. This Warrant shall be construed and interpreted in
accordance with the internal laws of the State of Wisconsin.
17. Successors and Assigns. The provisions of this Warrant shall be
binding upon and inure to the benefit of the Company and the Holder and their
respective successors, assigns and transferees.
18. Further Assurances. The Company agrees that it will execute and
record such documents as the Holder shall reasonably request to secure for the
Holder any of the rights represented by this Warrant.
19. Amendment and Modifications. This Warrant may be amended, modified or
supplemented only by written agreement of the Company and the Holder.
IN WITNESS WHEREOF, The Female Health Company has caused this Warrant to be
signed by its duly authorized officer and this Warrant to be dated as of March
25, 1999.
THE FEMALE HEALTH COMPANY
By:/s/ O. B. Parrish
-----------------------------
-----------------------------
Chairman of the Board
and Chief Executive Officer
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<PAGE>
EXHIBIT 11
NOTE PURCHASE AND WARRANT AGREEMENT
-----------------------------------
March 25, 1999
Stephen M. Dearholt
Insurance Processing Center
741 North Milwaukee Street
Milwaukee, Wisconsin 53202
THE FEMALE HEALTH COMPANY, a Wisconsin corporation (the "Company"), and you
entered into a Note Purchase and Warrant Agreement, dated March 25, 1998
pursuant to which you purchased a promissory note in the principal amount of
$1,000,000 from the Company (the "1998 Note"). The Company hereby requests that
you, Stephen M. Dearholt (hereinafter referred to as the "Lender"), surrender
the 1998 Note in exchange for a new promissory note in the principal amount of
$1,000,000 from the Company on the terms and conditions set forth below.
ARTICLE I
---------
NOTE
----
1.1 Purchase of Note. On the date hereof the Lender will accept a
promissory note from the Company in the principal amount of $1,000,000 (the
"Note") in the form of Exhibit A attached hereto in exchange for and upon
surrender of the 1998 Note, together with payment of all accrued interest on the
1998 Note to the date hereof. The Note is being executed by the Company and
delivered to the Lender against the delivery and in full payment of the 1998
Note.
ARTICLE II
----------
THE WARRANT
-----------
2.1 Issuance of Warrant. On the date hereof the Company shall issue to
Lender a warrant which shall entitle the Lender to purchase 200,000 of the
issued and outstanding shares of Common Stock, $.01 par value per share, of the
Company on the date of exercise at a purchase price of $_____ per share (subject
to adjustment as provided therein) in the form attached hereto as Exhibit B (the
"Warrant").
ARTICLE III
-----------
REPRESENTATIONS AND WARRANTIES OF COMPANY
-----------------------------------------
The Company represents and warrants to the Lender as follows:
3.1 Organization. The Company is a corporation duly organized and existing
in active status under the laws of the State of Wisconsin, and has all requisite
power and authority, corporate or otherwise, to conduct its business and to own
its properties.
3.2 Authority. The execution, delivery and performance of this Agreement,
the Note, the Warrant and the Stock Issuance Agreement between the Company and
Lender of even date herewith (the "Stock Issuance Agreement") are within the
corporate powers of the Company, have been duly authorized by all necessary
corporate action and do not and will not (i) require any consent or approval of
the stockholders of the Company; (ii) violate any provision of the amended and
restated articles of incorporation or amended and restated by-laws of the
Company
<PAGE>
or of any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to the Company;
(iii) require the consent or approval of, or filing or registration with, any
governmental body, agency or authority except for filing with the Securities and
Exchange Commission, applicable state securities regulatory agencies as required
to register the resale of any of the shares issued upon exercise of the Warrant
or pursuant to the Stock Issuance Agreement under the Securities Act of 1933, as
amended, and the securities laws of all applicable states; or (iv) result in a
breach of or constitute a default under, or result in the imposition of any
lien, charge or encumbrance upon any property of the Company pursuant to, any
indenture or other agreement or instrument under which the Company is a party or
by which it or its properties may be bound or affected. This Agreement
constitutes, and the Note, the Warrant and the Stock Issuance Agreement when
executed and delivered hereunder will each constitute, legal, valid and binding
obligations of the Company enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency or similar laws now
or hereafter in effect affecting the enforceability of creditors' rights
generally and subject to general principles of equity.
3.3 Capital Stock. The authorized capital stock of the Company consists of
15,000,000 shares of Common Stock, $.01 par value per share and 5,000,000 shares
of Class A Preferred Stock, $.01 par value per share. There are presently
outstanding 10,446,227 shares of Common Stock, and 670,000 shares of Class A
Convertible Preferred Stock Series 1. Other than (i) the Warrant and 200,000
shares of Common Stock to be issued to the Lender upon certain contingencies set
forth in a Stock Issuance Agreement between the Company and Lender of even date,
(ii) other warrants to purchase shares of Common Stock issued to the Lender
pursuant to Note Purchase and Warrant Agreements dated March 25, 1997, March 25,
1998, and February 12, 1999, to the Lender and William Lacy pursuant to a Note
Purchase Agreement dated March 25, 1996, and to the Lender and an affiliate of
Lender pursuant to a Note Purchase and Warrant Agreement dated November 21,
1995, (iii) warrants to purchase 10,000 shares of Common Stock issued to O. B.
Parrish and 10,000 shares of Common Stock to be issued to Mr. Parrish upon
certain contingencies set forth in a Stock Issuance Agreement, dated February
18, 1999, between the Company and Mr. Parrish, and (iv) such other rights,
options and warrants to purchase shares of Common Stock as disclosed in the
Company's public filings, there are no subscriptions, options, warrants, rights
or agreements (contingent or otherwise) providing for the issuance by the
Company of Common Stock or other equity securities of the Company having rights,
benefits or privileges equal or superior to that of the Common Stock.
3.4 Full Disclosure. The Company is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and has within the previous 12 months filed with the Securities and
Exchange Commission all reports, proxy statements and other information in
respect to the Company required under the Exchange Act. No such report or
information filed with the SEC within the previous 2 years, and no information
or report furnished by the Company to the Lender in connection with the
negotiation or execution of this Agreement (all of which information or reports
so furnished are set forth in Section 5.2 hereof), contained any misstatement of
a material fact as of the date when made or omitted to state a material fact
required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading as of the date when made.
ARTICLE IV
----------
DEFAULTS
--------
4.1 Defaults. The occurrence of any one or more of the following events
shall constitute an "Event of Default":
(a) The Company shall fail to pay any principal or interest due on
the Note within 5 days of its due date;
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<PAGE>
(b) Any representation or warranty made by the Company herein shall
prove to have been false in any material respect;
(c) The Company shall: (i) fail, or admit in writing its inability,
to pay its debts as they mature; or (ii) make a general assignment for the
benefit of creditors or to an agent authorized to liquidate any substantial
amount of its property; or (iii) become the subject of an "order for relief"
within the meaning of the United States Bankruptcy Code; or (iv) become the
subject of a creditor's petition for liquidation, reorganization or to effect a
plan or other arrangement with creditors which petition has not been dismissed
or stayed within 90 days of the filing thereof; or (v) apply to a court for the
appointment of a custodian or receiver for any of its assets; or (vi) have a
custodian or receiver appointed for substantially all of its assets (with or
without its consent); provided that, if the appointment is without the Company's
consent, such appointment has not been vacated or stayed within 90 days of such
appointment; or (vii) otherwise become the subject of any insolvency proceedings
(and if such proceedings are commenced without the Company's consent, such
proceedings shall not have been dismissed within 90 days after commencement
thereof) or propose or enter into any formal or informal composition or
arrangement with its creditors.
(d) This Agreement, the Note, the Warrant, or any other warrant
described in section 3.3(ii) hereof, shall, at any time after their respective
execution and delivery, and for any reason other than full performance thereof,
cease to be in full force and effect or be declared null and void, or the
validity or enforceability thereof or hereof shall be contested by the Company
or any shareholder of the Company, or the Company shall deny that it has any or
further liability or obligation thereunder or hereunder, as the case may be.
4.2 Acceleration of Obligations. Upon the occurrence of any Event of
Default:
(a) As to any Event of Default (other than an Event of Default under
section 4.1(c)) and at any time thereafter during which such Event of Default is
continuing, and in each case, the Lender may, by written notice to the Company,
immediately declare the unpaid principal balance of the Note, together with all
interest accrued thereon, to be immediately due and payable; and the unpaid
principal balance of and accrued interest on such Note shall thereupon be due
and payable without further notice of any kind, all of which are hereby waived,
and notwithstanding anything to the contrary herein or in the Note contained;
(b) As to any Event of Default under section 4.1(c), the unpaid
principal balance of the Note, together with all interest accrued thereon, shall
immediately and forthwith be due and payable, all without presentment, demand,
protest, or further notice of any kind, all of which are hereby waived,
notwithstanding anything to the contrary herein or in the Note contained; and
(c) As to each Event of Default, the Lender shall have all the
remedies for default provided by applicable law.
ARTICLE V
---------
MISCELLANEOUS
-------------
5.l Expenses: Indemnities.
(a) The Company shall pay, or reimburse the Lender for (i) all out-
of-pocket costs and expenses (including, without limitation, attorneys' fees and
expenses not to exceed $2,500) paid or incurred by the Lender in connection with
the negotiation, preparation, execution and delivery of this Agreement, the
Note, the Warrant, the Stock Issuance Agreement, and any other document required
hereunder or thereunder; (ii) all out-of-pocket costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) paid or incurred by
the Lender in
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<PAGE>
connection with the negotiation, preparation, execution and delivery of any
amendment, supplement, modification or waiver of any of the documents referenced
above or before and after judgment in enforcing, protecting or preserving his
rights under this Agreement, the Note, the Warrant, the Stock Issuance
Agreement, and other documents required hereunder or thereunder; and (iii) any
and all recording and filing fees and any and all stamp, excise, intangibles and
other taxes (other than income taxes), if any, which may be payable or
determined to be payable in connection with the negotiation, preparation,
execution, delivery, administration or enforcement of this Agreement, the Note,
the Warrant, the Stock Issuance Agreement, or any other document required
hereunder or thereunder or any amendment, supplement, modification or waiver of
or to any of the foregoing, or consummation of any of the transactions
contemplated hereby or thereby, including all costs and expenses incurred in
contesting the imposition of any such tax, and any and all liability with
respect to or resulting from any delay in paying the same, whether such taxes
are levied upon the Lender, the Company or otherwise.
(b) The Company agrees to indemnify the Lender against any and all
losses, claims, damages, liabilities and expenses, (including, without
limitation, reasonable attorneys' fees and expenses) incurred by the Lender
arising out of or resulting from (i) any acquisition or attempted acquisition of
stock or assets of another person or entity by the Company or any subsidiary,
(ii) the use of any of the proceeds of the loan made hereunder by the Company
for the making or furtherance of any such acquisition or attempted acquisition,
(iii) the construction or operation of any facility owned or operated by the
Company or any subsidiary, or resulting from any pollution or other
environmental condition on the site of, or caused by, any such facility, (iv)
the negotiation, preparation, execution, delivery and enforcement of this
Agreement, the Note, the Warrant, the Stock Issuance Agreement, and any other
document required hereunder or thereunder, including without limitation any
amendment, supplement, modification or waiver of or to any of the foregoing or
the consummation or failure to consummate the transactions contemplated hereby
or thereby, or the performance by the parties of their obligations hereunder or
thereunder, (v) any claim, litigation, investigation or proceedings related to
any of the foregoing, whether or not the Lender is a party thereto; provided,
however, that such indemnity shall not apply to any such losses, claims,
damages, liabilities or related expenses arising from (A) any breach by the
Lender of his obligations under this Agreement, or in his fiduciary duties as a
director of the Company for which he would not otherwise be entitled to
indemnification as a director of the Company, (B) any commitment made by the
Lender to a person other than the Company which would be breached by the
performance of the Lender's obligations under this Agreement or (C) Lender's
gross negligence or willful misconduct; and provided further that clauses (i),
(ii) and (iii) of this paragraph shall apply only to losses, claims, damages,
liabilities and expenses arising out of or resulting from third party claims.
(c) The foregoing agreements and indemnities shall remain operative
and in full force and effect regardless of termination of this Agreement, the
consummation of or failure to consummate either the transactions contemplated by
this Agreement or any amendment, supplement, modification or waiver, the
repayment of the loan made hereunder, the invalidity or unenforceability of any
term or provision of this Agreement, the Note, the Warrant, the Stock Issuance
Agreement, or any other document required hereunder or thereunder, any
investigation made by or on behalf of the Lender, or the content or accuracy of
any representation or warranty made under this Agreement or any other document
required hereunder or thereunder.
5.2 Securities Act of 1933. (a) With respect to the Note and the Warrant
to be issued to the Lender, the Lender hereby represents, warrants and covenants
as follows:
(i) He understands that the issuance of the Note and the Warrant has
not been registered under the Securities Act of 1933, as amended (the
"Act") or applicable state securities laws (collectively, the "Laws") on
the basis that the issuance of the Note and the Warrant is exempt from such
registration under the Act and Laws based in part upon the representations
made herein;
(ii) He does not presently intend to sell or otherwise dispose of the
Note or the Warrant being issued to him hereunder;
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(iii) He is acquiring the Note and the Warrant for investment
purposes only and for his own account and not with a present view to sell
or otherwise distribute the same, and he will not sell or otherwise
distribute the Note or the Warrant without registration under the Act and
applicable Laws or pursuant to applicable exemptions therefrom;
(iv) He is an "accredited investor" under the Act and the rules
promulgated thereunder;
(v) He has been given access to and has carefully reviewed the
Company's Form 10-Q for the first fiscal quarter of 1999, the Company's
Form 10-K and annual report to shareholders for the year ended September
30, 1998, and the Company's Proxy Statement for the 1999 annual meeting of
shareholders. He desires no additional information to evaluate the merits
and risks of the issuance of the Note and the Warrant hereunder, and he is
not relying upon any other information in connection therewith.
(vi) He has been given an opportunity to ask questions of, and receive
answers from, management of the Company concerning the issuance of the Note
and the Warrant hereunder, and has been given access to all information
which he has deemed necessary to verify the accuracy of the information
furnished to him;
(vii) He has such knowledge and experience in financial and business
matters that he is capable of evaluating the merits and risks of the
transactions contemplated by this Agreement, has carefully reviewed all
information indicated above and, by virtue of such review, understands and
has evaluated the merits and risks of his participation in such
transactions and has decided to go forward with such transactions; and
(viii) He understands that the Company is relying on the accuracy of
the statements contained herein in entering into this Agreement and the
transactions contemplated herein.
5.3 Successors. The provisions of this Agreement shall inure to the
benefit of any holder of the Note or Warrant, and shall inure to the benefit of
and be binding upon any successor to any of the parties hereto. No delay on the
part of the Lender or any holder of the Note or a Warrant in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein specified are cumulative and
are not exclusive of any rights or remedies which the Lender or the holder of
the Note or a Warrant would otherwise have.
5.4 Survival. All agreements, representations and warranties made herein
shall survive the execution of this Agreement, the making of the loan hereunder
and the execution and delivery of the Note and the Warrant.
5.5 Wisconsin Law. This Agreement and the Note and Warrant issued
hereunder shall be governed by and construed in accordance with the internal
laws of the State of Wisconsin, except to the extent superseded by federal law.
5.6 Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
5.7 Notices. All communications or notices required under this Agreement
shall be deemed to have been given on the date when deposited in the United
States mail, postage prepaid, and addressed as follows (unless and until any of
such parties advises the other in writing of a change in such address): (a) if
to the Company, with the full name and address of the Company as shown on this
Agreement below; and (b) if to the Lender, with the full name and address of the
Lender as shown on this Agreement above.
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5.8 Entire Agreement; No Agency. This Agreement and the other documents
referred to herein contain the entire agreement between the Lender and the
Company with respect to the subject matter hereof, superseding all previous
communications and negotiations, and no representation, undertaking, promise or
condition concerning the subject matter hereof shall be binding upon the Lender
unless clearly expressed in this Agreement or in the other documents referred to
herein. Nothing in this Agreement or in the other documents referred to herein
and no action taken pursuant hereto shall cause either the Company or the Lender
to be treated as an agent of the other, or shall be deemed to constitute a
partnership, association, joint venture or other entity.
5.9 Consent to Jurisdiction. The parties hereto hereby consent to the
exclusive jurisdiction of any state or federal court situated in Ozaukee County
or Milwaukee County, Wisconsin, and waive any objection based on lack of
personal jurisdiction, improper venue or forums non conveniens, with regard to
any actions, claims disputes or proceedings relating to this Agreement, the
Note, the Warrant or any other document delivered hereunder or in connection
herewith, or any transaction arising from or connected to any of the foregoing.
Nothing herein shall affect the parties' rights to serve process in any manner
permitted by law.
5.10 Waiver of Jury Trial. The Company and the Lender hereby jointly and
severally waive any and all right to trial by jury in any action or proceeding
relating to this Agreement, the Note, the Warrant or any other document
delivered hereunder or in connection herewith, or any transaction arising from
or connected to any of the foregoing. The Company and the Lender each represent
that this waiver is knowingly, willingly and voluntarily given.
If the foregoing is satisfactory to you please sign the form of acceptance below
and return a signed counterpart hereof to the Company, whereupon this instrument
will evidence a binding agreement between the Lender and the Company.
Very truly yours,
THE FEMALE HEALTH COMPANY
Address: Suite 3660
875 North Michigan Avenue
Chicago, Illinois 60611
By: /s/ O. B. Parrish
-----------------
Chairman of the Board and
Chief Executive Officer
The foregoing Agreement is hereby confirmed and accepted as of the date
thereof.
/s/ Stephen M. Dearholt
-----------------------
Stephen M. Dearholt
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EXHIBIT 12
STOCK ISSUANCE AGREEMENT
THIS AGREEMENT, is made as of March 25, 1999 between STEPHEN M. DEARHOLT,
an adult resident of the State of Wisconsin ("Lender") and THE FEMALE HEALTH
COMPANY a Wisconsin corporation (the "Company").
RECITALS
A. The Company desires to issue and sell its Promissory Note in the
principal amount of One Million Dollars ($1,000,000) (the "Note") to Lender
pursuant to a Note Purchase and Warrant Agreement of even date among the Lender
and the Company (the "Note Purchase and Warrant Agreement"), and in exchange for
and upon surrender of the rights and interests of Lender under the Stock
Issuance Agreement, dated as March 25, 1998, among the Lender and the Company
(the "1998 Stock Issuance Agreement").
B. Lender has required, as a condition of providing the loan to the
Company under the Note Purchase and Warrant Agreement that the Company enter
into this Agreement and undertake the obligations and liabilities set forth
herein.
C. It is necessary and in the business interests of the Company that the
Lender enter into the Note Purchase and Warrant Agreement.
COVENANTS:
IN CONSIDERATION OF these premises and other good and valuable
consideration receipt of which is hereby acknowledged, it is agreed that:
1. Issuance and Sale of Shares. (a) The Company agrees that in the event
the Company shall default in the payment of principal due on the Note and shall
fail to pay such principal amount within five (5) days of receipt of written
notice of default from the Lender, the Company shall issue to The Lender two
hundred thousand (200,000) fully paid and non-assessable shares of Common Stock,
$.01 par value per share, of the Company; provided that the Company shall issue
to the Lender a proportionately fewer or greater number of shares of such Common
Stock if the Company combines by reverse stock split or otherwise or subdivides
by stock split, stock dividend or otherwise its outstanding Common Stock. The
Company shall be obligated to issue, and the Lender shall have the right to
receive, all such shares without payment of any further consideration
whatsoever. Notwithstanding the foregoing, the Company shall remain liable for
all amounts remaining due under and in accordance with the terms of the Note.
(b) At such time, if any, as the Company shall become obligated to issue
shares of its Common Stock to the Lender pursuant to Section 1(a) of this
Agreement, the Lender shall be entitled to receive a certificate or certificates
representing such shares of Common Stock, which certificate(s) may contain a
standard legend indicating that such shares have not been registered under the
Securities Act of 1933, as amended (the "Securities Act") and prohibiting resale
thereof without registration or an opinion of counsel that an exemption from
registration is available. Subject to the Company's Amended and Restated
Articles of Incorporation, certificates for the shares of Common Stock required
to be issued hereunder shall be delivered to the Lender within a reasonable
time, not exceeding ten days, after the Company shall have become obligated to
issue such shares pursuant to Section 1(a) hereof.
2. Reservation of Shares. The Company covenants and agrees that the
shares of Common Stock issuable hereunder will, upon such issuance in accordance
herewith, be duly authorized, validly issued, fully paid and nonassessable
(except as set forth in Section 180.0622(2)(b), Wis. Stats., as amended and
interpreted) and free from all taxes, liens and charges. The Company further
covenants and agrees that, prior to the Termination Date (as
<PAGE>
hereinafter defined) it will at all times have authorized and reserved a
sufficient number of shares of its Common Stock to provide for the issuance of
the shares required by this Agreement.
3. Issuance of Preferred Stock. Prior to the Termination Date, the
Company will not issue any capital stock of any class preferred as to dividends
or as to the distribution of assets upon voluntary or involuntary liquidation,
dissolution or winding up, unless the rights of the holders thereof shall be
limited to a fixed sum or percentage of par value in respect of participation in
dividends and in the distribution of such assets.
4. Anti-Dilution Provisions. The above provisions are, however, subject
to the following:
(a) If any capital reorganization or reclassification of the capital
stock of the Company, or consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities or assets with respect to or in
exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby the Lender shall hereafter have the right to receive upon
the basis and upon the terms and conditions specified in this Agreement and in
lieu of the shares of the Common Stock of the Company immediately theretofore
receivable hereunder, such shares of stock, securities or assets as may be
issued or payable with respect to or in exchange for a number of outstanding
shares of such Common Stock equal to the number of shares of such stock
immediately theretofore receivable hereunder had such reorganization,
reclassification, consolidation, merger or sale not taken place, and in any such
case appropriate provision shall be made with respect to the rights and
interests of the Lender hereunder to the end that the provisions hereof shall
thereafter be applicable, as nearly as may be, in relation to any shares of
stock, securities or assets thereafter issuable hereunder. The Company shall not
effect any such consolidation, merger or sale, unless prior to the consummation
thereof the successor corporation (if other than the Company) resulting from
such consolidation or merger or the corporation purchasing such assets shall
assume by written instrument executed and mailed to the Lender at the last
address specified pursuant to Section 11 hereof, the obligation to issue and
deliver to the Lender such shares of stock, securities or assets as, in
accordance with the foregoing provisions, he may be entitled to receive.
5. Certain Events. If any event occurs as to which the provisions for the
issuance of Common Stock set forth in this Agreement are not strictly applicable
or, if strictly applicable would not fairly protect the rights of the Lender in
accordance with the essential intent and principles of such provisions, then the
Board of Directors of the Company shall make an adjustment in the application of
such provisions, in accordance with such essential intent and principles, so as
to protect the Lender's rights as aforesaid.
6. Termination Date. The obligation of the Company to issue, and the
right of the Lender to receive, Common Stock pursuant to this Agreement shall
terminate at such time as the Company shall have made payment in full of the
Note, and such payments are not subject to any right of recovery (the
"Termination Date").
7. Issue Tax. The issuance of certificates for shares of Common Stock
pursuant to this Agreement shall be made without charge to the Lender for any
issuance tax in respect thereof.
8. Registration Rights. All references in this Section 8 to Common Stock
shall be deemed to include Other Securities as applicable.
8.1 Demand Registration. At any time following the issuance of Common
Stock pursuant to this Agreement, the Lender may demand registration under the
Securities Act of all or part of the Common Stock which has been issued pursuant
to this Agreement, on Form S-1 or any similar long-form registration or, in the
Company's sole discretion, on Form S-2 or S-3 or any similar short-form
registration, if available under applicable rules of the SEC. The written
request to be delivered by the Lender to the Company pursuant to this Section
8.1 shall (i) specify
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the number of shares intended to be offered and sold by the Lender, (ii)
express the present intent of the Lender to offer such shares for distribution,
and (iii) describe the nature and method of the proposed offer and sale
thereof. The registration requested pursuant to this Section 8.1 is referred to
herein as "Demand Registration".
(a) Number of Registrations. Notwithstanding any contrary provision
contained in this Agreement (except the last sentence of this Section 8.1(a)
which shall continue to apply), the Note Purchase and Warrant Agreement between
the Company and Stephen M. Dearholt of even date, the Warrant issued by the
Company to Stephen M. Dearholt as of even date, and such other documents,
agreements and warrants under which the Lender may demand registration under the
Securities Act, the Lender shall be entitled to one or more Demand Registration
under all such documents, and shall be entitled to include all of the stock
received under all of such documents in any Demand Registration; provided,
however, that any such Demand Registration shall include at least two hundred
thousand (200,000) shares of Common Stock (subject to adjustment pursuant to
Section 4(a)). A registration initiated as a Demand Registration may be
withdrawn at any time at the request of the Lender; provided that in the event a
registration initiated as a Demand Registration is so withdrawn, all
registration expenses in connection with such withdrawn registration shall be
paid by the Lender. In the event the Lender shall pledge or assign his rights
and interests to all or part of the Common Stock issued to him hereunder as
collateral pursuant to a borrowing, the rights to Demand Registrations hereunder
may be assigned and transferred to a lender (and only one lender at any given
time) in connection therewith and said lender shall be entitled to request such
Demand Registration at any time notwithstanding the provisions of clauses (i)
and (ii) of Section 8.1(c) below.
(b) Priority on Demand Registration. The Company will not include in
the Demand Registration any securities which are not Common Stock owned by the
Lender, without the written consent of the Lender. If the Demand Registration
is an underwritten offering, and the managing underwriters advise the Company in
writing that in their opinion the number of shares of Common Stock requested to
be included exceeds the number of shares of Common Stock which can be sold in
such offering without adversely affecting the market price of the Company's
Common Stock, the Company will include in such registration, prior to the
inclusion of any securities which are not shares of Common Stock owned by the
Lender, the number of shares of Common Stock owned by the Lender requested to be
included which in the opinion of such underwriters can be sold without such
adverse affect; and the balance of the shares of Common Stock which the Lender
requested to be included in such offering shall be withheld from sale for a
period of time requested by the underwriters, but not to exceed one hundred
twenty (120) days.
(c) Restrictions on Demand Registration. Subject to the last sentence
of Section 8.1(a), the Company will not be obligated to effect a Demand
Registration (i) within one hundred twenty (120) days after the effective date
of a registration in which the Lender was given an opportunity to participate in
a registered offering pursuant to Section 8.2 or (ii) within twelve (12) months
of a Demand Registration given to the Lender pursuant to any other warrants or
agreements between the Company and the Lender. The Company may postpone for up
to ninety (90) days the filing or the effectiveness of a registration statement
for a Demand Registration if the Company and the Lender reasonably and in good
faith agree that such Demand Registration might have an adverse effect on any
proposal or plan by the Company to engage in any financing, acquisition of
assets (other than in the ordinary course of business) or any corporate
reorganization, merger, consolidation, tender offer or similar transaction.
(d) Selection of Underwriters. If the Demand Registration involves an
underwritten public offering, the Company will have the right to select the
investment banker(s) and manager(s) to administer the offering, subject to the
Lender's approval (which will not be unreasonably withheld) of such investment
banker(s) and managers(s).
8.2 Participation in Registered Offerings. If the Company at any time or
times proposes or is required to register any of its Common Stock or other
equity securities for public sale in an underwritten public offering for cash
(other than in connection with any stock option, bonus or other employee benefit
plan or arrangement) under
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the Securities Act or any applicable state securities law, it will each such
time give written notice to the Lender of its intention to do so. Upon the
written request of the Lender given within thirty (30) business days after
receipt of any such notice (which request shall state the intended method of
disposition of such equity securities and shall state in reasonable detail, to
the extent practicable, the net consideration, after all commissions and
discounts which the prospective seller expects to receive upon such
disposition), the Company shall use all reasonable efforts to cause all such
Common Stock issued hereunder which the Lender so requested to be registered
(which request will not be for less than fifty percent (50%) of the number of
shares of Common Stock issued under this Agreement and all other agreements
giving registration rights) to be registered under the Securities Act and any
applicable state securities laws (provided, that if the managing underwriter
advises that less than all of the registered shares of equity securities should
be offered for sale so as not to materially and adversely affect the price or
salability of the offering being registered by the Company or the Lender for a
period not to exceed one hundred twenty (120) days, the Lender will withhold
from sale for such period of time such number of shares of Common Stock as the
underwriter may specify; provided further that a pro rata number of shares owned
by all other shareholders of the Company also shall be similarly withheld from
sale), all to the extent requisite to permit the sale or other disposition (in
accordance with the intended method of disposition thereof as aforesaid) by the
prospective seller or sellers of the securities so registered. In the event an
underwriter is involved with a registration initiated by the Company of the
Common Stock, and the Lender requests to participate in the registration, the
Lender must commit to sell through the underwriter. The Company may, in its sole
discretion, withdraw any registration contemplated by this Section 8.2 and
abandon the proposed offering in which the Lender had requested to participate
without any further obligation to the Lender with respect to such registration
statement or offering; provided however that the Lender shall be indemnified by
the Company for any fees, costs and expense of and incidental to such
registration, excluding the fees and disbursements of counsel acting solely on
behalf of the Lender.
8.3 Obligations of The Lender. It shall be a condition precedent to the
obligation of the Company to register any Common Stock pursuant to Sections 8.1
and 8.2 hereof that the Lender shall (i) furnish to the Company such information
regarding the Common Stock held by him and the intended method of disposition
thereof and other information concerning the Lender as the Company shall
reasonably request and as shall be required in connection with the registration
statement to be filed by the Company; (ii) agree to abide by such additional or
customary terms affecting the proposed offering as reasonably may be requested
by the managing underwriter of such offering, including a requirement, if
applicable, to withhold (on a pro-rata basis) from the public market for a
period of at least one hundred twenty (120) days after any such offering, any
shares excluded from the offering at the instance of the underwriter as
permitted under Sections 8.1 and 8.2 hereof; and (iii) agree in writing in form
satisfactory to the Company to pay the underwriting discounts and commissions
applicable to the Common Stock being sold by the Lender.
8.4 Registration Proceedings. If and whenever the Company is required by
the provisions of Sections 8.1 and 8.2 hereof to effect the registration of the
Common Stock under the Securities Act, until the securities covered by such
registration statement have been sold or for six (6) months after effectiveness,
whichever is the shorter period of time, the Company shall:
(a) Promptly prepare and file with the SEC a registration statement
with respect to such Common Stock and use all reasonable efforts to cause such
registration statement to become effective as soon as practicable after the
filing thereof and to remain effective, subject to the Company's right to
withdraw any registration contemplated by Section 8.2 hereof;
(b) Prepare and file with the SEC such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective;
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(c) Furnish to the Lender and to the underwriters of the securities
being registered such reasonable number of copies of the registration statement,
preliminary prospectus, final prospectus and such other documents as such
underwriters may reasonably request in order to facilitate the public offering
of such securities;
(d) Use all reasonable efforts to register or qualify the securities
covered by such registration statement under such state securities or "Blue Sky"
laws of such jurisdictions as the Lender may reasonably request within twenty
(20) days prior to the original filing of such registration statement, except
that the Company shall not for any purpose be required to qualify to do business
as a foreign corporation in any jurisdiction wherein it is not so qualified, and
except that the Company shall not be required to so register or qualify in more
than twenty (20) such jurisdictions if in the good faith judgment of the
managing underwriter such additional registrations or qualifications would be
unreasonably expensive or harmful to the consummation of the proposed offering;
(e) Notify the Lender, promptly after it shall receive notice
thereof, of the time when such registration statement has become effective or a
supplement to any prospectus forming a part of such registration statement has
been filed;
(f) Notify the Lender promptly of any request by the SEC for the
amending or supplementing of such registration statement or prospectus or for
additional information;
(g) Prepare and file with the SEC, promptly upon the request of the
Lender, any amendments or supplements to such registration statement or
prospectus which, in the opinion of counsel for the Lender and counsel for the
underwriter or manager of the offering, are required under the Securities Act or
the rules and regulations thereunder in connection with the distribution of
Common Stock by the Lender;
(h) Prepare and promptly file with the SEC and promptly notify the
Lender of the filing of such amendment or supplement to such registration
statement or prospectus as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to such securities is
required to be delivered under the Securities Act, any event shall have occurred
as the result of which any such prospectus or any other prospectus as then in
effect would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading;
(i) In case the Lender or any underwriter for the Lender is required
to deliver a prospectus at a time when the prospectus then in circulation is not
in compliance with the Securities Act, the Company will prepare and file such
supplements or amendments to such registration statement and such prospectus or
prospectuses as may be necessary to permit compliance with the requirements of
the Securities Act;
(j) Advise the Lender, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use all reasonable
efforts to prevent the issuance of any stop order or to obtain its withdrawal if
such stop order should be issued;
(k) Not file any amendment or supplement to such registration
statement or prospectus to which the Lender shall reasonably have objected on
the grounds that such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act or the rules and
regulations thereunder, after having been furnished with a copy thereof at least
two (2) business days prior to the filing thereof; and
(l) At the request of the Lender (i) use all reasonable efforts to
obtain and furnish on the effective date of the registration statement or, if
such registration includes an underwritten public offering, at the closing
provided for in the underwriting agreement, an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration,
addressed to the underwriters, if any, and to the Lender, which shall
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contain such opinions as are customary in an underwritten public offering, or,
if the offering is not underwritten, shall state that such registration
statement has become effective under the Securities Act and that (or
substantially to the effect that): (a) to the best of such counsel's knowledge,
no stop order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or contemplated
under the Securities Act; (b) the registration statement, related prospectus and
each amendment or supplement thereto comply as to form in all material respects
with the requirements of the Securities Act and applicable rules and regulations
of the SEC thereunder (except that such counsel need express no opinion as to
financial statements, schedules or other financial or statistical data contained
therein); (c) such counsel has no reason to believe that either the registration
statement or the prospectus or any amendment or supplement thereto (other than
financial statements and schedules or financial and statistical data, as to
which such counsel need not comment) contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; (d) the description in
the registration statement or prospectus or any amendment or supplement thereto
of all legal and governmental matters and all contracts and other legal
documents or instruments described therein are accurate in all material
respects; and (e) such counsel does not know of any legal or governmental
proceedings, pending or threatened, required to be described in the registration
statement or prospectus or any amendment or supplement thereto which are not
described as required, nor of any contracts or documents or instruments of the
character required to be described in the registration statement or prospectus
or amendment or supplement thereto or to be filed as exhibits to the
registration statement, which are not described and filed as required; and (ii)
use all reasonable efforts to obtain letters dated on such effective date, and
such closing date, if any, from the independent certified public accountants of
the Company, addressed to the underwriters, if any, and to the Lender, stating
that they are independent certified public accountants within the meaning of the
Securities Act and dealing with such matters as the underwriters may request,
or, if the offering is not underwritten, stating that in the opinion of such
accountants, the financial statements and other financial data pertaining to the
Company included in the registration statement or the prospectus or any
amendment or supplement thereto comply in all material respects with the
applicable accounting requirements of the Securities Act; such opinion of
counsel shall additionally cover such legal matters with respect to the
registration and with respect to which such opinion is being given as the Lender
may reasonably request; such letter from the independent certified public
accountants shall additionally cover such other financial matters, including
information as to the period ending not more than five (5) business days prior
to the date of such letter, with respect to the registration statement and
prospectus, as the Lender may reasonably request.
8.5 Expenses. With respect to each inclusion of Common Stock of the Lender
in a registration statement pursuant to Sections 8.1 and 8.2 hereof, all
registration expenses, fees, costs and expenses of and incidental to such
registration, including any pubic offering in connection therewith, shall be
borne by the Company (including the fees and disbursements of advisors retained
by the Lender and counsel acting solely on behalf of the Lender); provided,
however, that the Lender shall bear his pro rata share of the underwriting
discount and commissions. The fees, costs and expenses of registration to be
borne by the Company shall include, without limitation, all registration, filing
and NASD fees, printing expenses, fees and disbursements of counsel and
accountants for the Company (including the cost of any special audit requested
in order to effect such registration), fees and disbursements of counsel for the
underwriter or underwriters of such securities (if the Company and/or selling
security holders are required to bear such fees and disbursements), all legal
fees and disbursements and other expenses of complying with state securities or
"Blue Sky" laws of any jurisdiction in which the securities to be offered are to
be registered or qualified.
8.6 Indemnification of The Lender. Subject to the conditions set forth
below, in connection with any registration of securities pursuant to Sections
8.1 or 8.2 hereof, the Company agrees to indemnify and hold harmless the Lender
as follows:
(a) Against any and all loss, claim, damage and expense whatsoever
arising out or based upon (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing or defending any
litigation, commenced or threatened, or any claim whatsoever based upon) any
untrue or alleged untrue statement of a material fact contained in any
preliminary prospectus (if used prior to the effective date of the
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registration statement), the registration statement or the final prospectus (as
from time to time amended and supplemented if the Company shall have filed with
the SEC any amendment thereof or amendment thereto) if used within the period
during which the Company is required to keep the registration statement or
prospectus current, or in any application or other document executed by the
Company or based upon written information furnished by the Company filed in any
jurisdiction in order to qualify the Company's securities under the securities
laws thereof; or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; or any
other violation of applicable federal or state statutory or regulatory
requirements or limitations relating to action or inaction by the Company in the
course of preparing, filing, or implementing such registered offering; provided,
however, that the indemnity agreement contained in this Section 8.6(a) shall not
apply to any loss, claim, damage, liability or action arising out of or based
upon any untrue or alleged untrue statement or omission made in reliance upon
and in conformity with any information furnished in writing to the Company by or
on behalf of the Lender expressly for use in connection therewith;
(b) Subject to the proviso contained in the last sentence of Section
8.6(a) above, against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission or any such alleged untrue statement or
omission (including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing or defending against any such
litigation or claim) if such settlement is effected with the written consent of
the Company and no indemnity shall inure to the benefit of the Lender if the
person asserting the claim failed to receive a copy of the final prospectus at
or prior to the written confirmation of the sale of shares of Common Stock to
such person if the untrue statement or omission had been corrected in such final
prospectus and the failure to receive such final prospectus is not a necessary
element of such person's claim;
(c) In no case shall the Company be liable under this indemnity
agreement with respect to any claim made against the Lender unless the Company
shall be notified, by letter or by telegram confirmed by letter, of any claim
made or action commenced against him, reasonably promptly (but in any event
within twenty (20) days of receipt of such claim or, in the event that any
summons or other service of process requires a responsive pleading within thirty
(30) days or less time, within ten (10) days after receipt of such summons or
other process) after the Lender shall have received notice of such claim or been
served with the summons or other legal process giving information as to the
nature and basis of the claim, but failure to so notify the Company shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. The Company shall be entitled to participate at its
own expense in the defense of any suit brought to enforce any such claim, but if
the Company elects to assume the defense, such defense shall be conducted by
counsel chosen by it, provided that such counsel is reasonably satisfactory to
the Lender. In the event the Company elects to assume the defense of any such
suit and retain such counsel, the Lender shall, after the date the Lender is
notified of such election, bear the fees and expenses of any counsel thereafter
retained by the Lender as well as any other expenses thereafter incurred by the
Lender in connection with the defense thereof; provided, however, that the
Company shall bear the fees and expenses of any such separate counsel retained
by the Lender if the counsel representing the Company has a conflict of interest
(which is not waived) with the Lender which would prohibit such counsel from
representing the Lender.
8.7 Indemnification of Company. In connection with any registered offering
pursuant to Section 8.1 and 8.2 above, the Lender agrees to indemnify and hold
harmless the Company and each of the officers and directors and agents of it and
each other person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act against any and all such losses, liabilities,
claims, damages and expenses as are indemnified against by the Company under
Section 8.6 hereof; provided, however, that such indemnification shall be
limited to statements or omissions, if any, made (or in settlement of any
litigation effected with the written consent of the Lender alleged to have been
made) in any preliminary prospectus, the registration statement or prospectus or
any amendment or supplement thereof or any application or other document in
reliance upon, and in conformity with,
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written information furnished in respect of the Lender, by or on behalf of the
Lender expressly for use in any preliminary prospectus, the registration
statement or prospectus or any amendment or supplement thereof or in any such
application or other document. In case any action shall be brought against the
Company, or any other person so indemnified based on any preliminary prospectus,
the registration statement or prospectus or any amendment or supplement thereof
or any such application or other documents, in respect of which indemnity may be
sought against the Lender, it shall have the rights and duties given to the
Company, and each other person so indemnified shall have the rights and duties
given to the Lender, by the provisions of Section 8.6(c) hereof. The Company
agrees to notify the Lender promptly after the assertion of any claim against
the Company in connection with the sale of securities covered by this Agreement.
8.8 Future Registration Rights. The Company may agree with its
shareholders other than the Lender to allow their participation in any
registered offering which may be requested pursuant to Section 8.1 hereof,
provided all such rights of participation under Section 8.1 hereof shall be
subordinated to the rights of the Lender herein, in a manner reasonably
satisfactory to the Lender and his counsel.
9. Definitions. When used in this Agreement, the following terms shall
have the meanings specified:
(a) "Affiliate" shall mean any Person directly or indirectly
controlling, controlled by or under direct or indirect common control with
another Person. A Person shall be deemed to control a corporation if such Person
possesses, directly or indirectly, the power to direct or cause the direction of
the management and policies of such corporation, whether through the ownership
of voting securities, by contract or otherwise.
(b) "Common Shares" shall mean and include the Company's presently
authorized shares of Common Stock and shall also include any capital stock of
any class of the Company hereafter authorized which shall not be limited to a
fixed sum or percentage of par value in respect of the rights of the holders
thereof to participate in dividends or in the distribution of assets upon the
voluntary or involuntary liquidation, dissolution or winding up of the Company;
provided that the shares issuable pursuant to this Agreement shall include
shares designated as Common Stock of the Company on the date hereof or, in case
of any reclassification of the outstanding shares thereof, the stock, securities
or assets provided for in Section 4(a) hereof.
(c) "Common Stock" shall mean the common stock, $.01 par value per
share, of the Company.
(d) "Other Securities", as used in Section 8 hereof, shall mean any
stock (other than Common Stock) and other securities of the Company or any other
Person (corporate or otherwise) which the Lender at any time shall be entitled
to receive, or shall have received, under this Agreement, in lieu of or in
addition to Common Stock, or which at any time shall be issuable or shall have
been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 4 hereof or otherwise.
(e) "Person" shall mean and include an individual, partnership,
corporation, trust, joint venture, incorporated organization and a government or
any department or agency thereof.
(f) "Termination Date" shall have the meaning assigned thereto in
Section 6 hereof.
10. Descriptive Headings. The descriptive headings of the several sections
of this Agreement are inserted for convenience only and do not constitute a part
of this Agreement.
11. Notices. Any notice or other communication pursuant to this Agreement
shall be in writing and shall be deemed sufficiently given upon receipt, if
personally delivered or telecopied (with receipt acknowledged), or if
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mailed, upon deposit with the United States Postal Service by first class,
certified or registered mail, postage prepaid, return receipt requested,
addressed as follows:
(a) If to the Company, to The Female Health Company, 875 North
Michigan Street, Suite 3660, Chicago, Illinois 60611, Attention: Secretary,
or such other address as the Company has designated in writing to the Lender.
(b) If to the Lender, to Stephen Dearholt, c/o Response Marketing,
741 North Milwaukee Street, Milwaukee Wisconsin 53202 or to such other address
as The Lender has designated in writing to the Company.
12. Governing Law: Consent to Jurisdiction. The Company and the Lender
each hereby consents to the exclusive jurisdiction of any state or federal court
situated in Milwaukee County, Wisconsin, and waives any objection based on lack
of personal jurisdiction, improper venue or forum non conveniens, with regard to
any actions, claims, disputes or proceedings relating to this Agreement, or any
document delivered hereunder or in connection herewith, or any transaction
arising from or connected to any of the foregoing. Nothing herein shall affect
either party's right to serve process in any manner permitted by law, or limit
either party's right to bring proceedings against the other or their property or
assets in the competent courts of any other jurisdiction or jurisdictions. This
Agreement shall be construed and interpreted in accordance with the internal
laws of the State of Wisconsin.
13. Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors and assigns.
14. Further Assurances. The Company agrees that it will execute and record
such documents as the Lender shall reasonably request to secure for the Lender
any of the rights represented by this Agreement.
15. 1998 Stock Issuance Agreement. This Agreement supersedes and replaces
the 1998 Stock Issuance Agreement in its entirety, which shall be of no further
force or effect as of the date hereof.
16. Entire Agreement: Amendment and Modifications. This Agreement
constitutes the entire agreement between the Lender and the Company with respect
to the subject matter hereof, superseding all previous communications and
negotiations, and no representation, understanding, promise or condition
concerning the subject matter hereof shall be binding upon either party unless
expressed herein. This Agreement may be amended, modified or supplemented only
by written agreement of the Company and the Lender.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE FEMALE HEALTH COMPANY
By:/s/ O. B. Parrish
-----------------
Chairman of the Board and
Chief Executive Officer
/s/ Stephen M. Dearholt
-----------------------
Stephen M. Dearholt
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