Exhibit
3.1
BYLAWS
OF
ROCKWELL MEDICAL TECHNOLOGIES, INC.,
a Michigan corporation
ARTICLE I
OFFICES
1.1 Registered Office. The registered office of the Corporation shall be located at such
place in Michigan as the Board of Directors from time to time determines.
1.2 Other Offices. The Corporation may also have offices or branches at such other places as
the Board of Directors from time to time determines or the business of the Corporation requires.
ARTICLE II
MEETINGS OF SHAREHOLDERS
2.1 Time and Place. All meetings of the shareholders shall be held at such place and time as
the Board of Directors determines.
2.2 Annual Meetings. An annual meeting of shareholders shall be held on a date, not later
than 180 days after the end of the immediately preceding fiscal year, to be determined by the Board
of Directors. At the annual meeting, the shareholders shall elect directors and transact such
other business as is properly brought before the meeting and described in the notice of meeting.
If the annual meeting is not held on its designated date, the Board of Directors shall cause it to
be held as soon thereafter as convenient.
2.3 Special Meetings. Special meetings of the shareholders, for any purpose, (a) may be
called by the Corporation’s chief executive officer or the Board of Directors, and (b) shall be
called by the President or Secretary upon written request (stating the purpose for which the
meeting is to be called) of the holders of a majority of all the shares entitled to vote at the
meeting.
2.4 Notice of Meetings. Written notice of each shareholders’ meeting, stating the place, date
and time of the meeting and the purposes for which the meeting is called, shall be given (in the
manner described in Section 5.1 below) not less than 10 nor more than 60 days before the date of
the meeting to each shareholder of record entitled to vote at the meeting. Notice of adjourned
meetings is governed by Section 2.7 below.
2.5 Advance Notice Requirements for Stockholder Proposals and Director Nominees. At an annual
meeting of the stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting business must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at the direction of the
Board of Directors in accordance with Section 2.4 above, (b) otherwise properly brought before the
meeting by or at the direction of the Board of Directors, or (c) otherwise properly brought before
the meeting by a stockholder. For business to be properly brought before an annual meeting by a
stockholder, or for a stockholder to nominate candidates for election as directors at an annual or
special meeting of the stockholders, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a stockholder’s notice must be
delivered, mailed and received at the principal executive offices of the Corporation, (a) in the
case of an annual meeting that is called for a date that is within 30 days before or after the
anniversary date of the immediately preceding annual meeting of stockholders, not less than 60 days
nor more than 90 days prior to such anniversary date, and (b) in the case of an annual meeting that
is not called for a date that is within 30 days before or after the anniversary date of the
immediately preceding annual meeting, or in the case of a special meeting of the stockholders
called for the purpose of electing directors, not later than the close of business on the tenth day
following the day on which notice of the date of the meeting was mailed or public disclosure of the
date of the meeting was made, whichever occurs first. A stockholder’s notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring before the annual meeting (a) a
brief description of the business desired to be brought before the annual meeting and the reasons
for conducting such business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (b) the name and address, as they appear on the
Corporation’s books, of the stockholder proposing such business, (c) the class and number of shares
of the Corporation which are beneficially owned by the stockholder, and (d) any material interest
of the stockholder in such business. Notwithstanding anything in the Bylaws to the contrary, no
business shall be conducted at any annual meeting or special meeting called for the purpose of
electing directors except in accordance with the procedures set forth in this Section 2.5. The
Chairman of the annual meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting and in accordance with the provisions of
this Section 2.5, and if he or she should so determine, he or she shall so declare to the meeting
and any such business not properly brought before the meeting shall not be transacted.
2.6 List of Shareholders. The officer or agent who has charge of the stock transfer books for
shares of the Corporation shall make and certify a complete list of the shareholders entitled to
vote at a shareholders’ meeting or any adjournment of the meeting. The list shall be arranged
alphabetically within each class and series and shall show the address of, and the number of shares
held by, each shareholder. The list shall be produced at the time and place of the meeting and may
be inspected by any shareholder at any time during the meeting.
2.7 Quorum; Adjournment. At all shareholders’ meetings, the shareholders present in person or
represented by proxy who, as of the record date for the meeting, were holders of shares entitled to
cast a majority of the votes at the meeting, shall constitute a quorum. Once a quorum is present
at a meeting, all shareholders present in person or represented by proxy at the meeting may
continue to do business until adjournment, notwithstanding the withdrawal of enough
2
shareholders to leave less than a quorum. Regardless of whether a quorum is present, a
shareholders’ meeting may be adjourned to another time and place by a vote of the shares present in
person or by proxy without notice other than announcement at the meeting; provided, that (a) only
such business may be transacted at the adjourned meeting as might have been transacted at the
original meeting and (b) if the adjournment is for more than 60 days or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of the adjourned meeting must be given
to each shareholder of record entitled to vote at the meeting.
2.8 Voting. Each shareholder shall at every meeting of the shareholders be entitled to one
vote in person or by proxy for each share having voting power held by such shareholder and on each
matter submitted to a vote. A vote may be cast either orally or in writing. When an action, other
than the election of directors, is to be taken by vote of the shareholders, it shall be authorized
by a majority of the votes cast by the holders of shares entitled to vote on such action.
Directors shall be elected by a plurality of the votes cast at any election.
2.9 Proxies. A shareholder entitled to vote at a meeting of shareholders or to express
consent or dissent without a meeting may authorize other persons to act for him or her by proxy.
Each proxy shall be in writing and signed by the shareholder or the shareholder’s authorized agent
or representative. A proxy is not valid after the expiration of three years after its date unless
otherwise provided in the proxy.
2.10 Questions Concerning Elections. The Board of Directors may, in advance of the meeting,
or the presiding officer may, at the meeting, appoint one or more inspectors to act at a
shareholders’ meeting or any adjournment thereof. If appointed, the inspectors shall determine the
number of shares outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine challenges and questions arising in connection with the right to
vote, count and tabulate votes, ballots or consents, determine the result, and do such acts as are
proper to conduct the election or vote with fairness to all shareholders.
2.11 Telephonic Attendance. Shareholders may participate in any shareholders’ meeting by
means of conference telephone or similar communications equipment through which all persons
participating in the meeting may communicate with the other participants. All participants shall
be advised of the communications equipment and the names of the participants in the conference
shall be divulged to all participants. Participation in a meeting pursuant to this Section 2.10
constitutes presence in person at such meeting.
2.12 Action by Written Consent. To the extent permitted by the Articles of Incorporation or
applicable law, any action required or permitted to be taken at any shareholders’ meeting may be
taken without a meeting, prior notice and a vote, by written consent of shareholders. No action by
written consent of holders of less than all the outstanding shares entitled to vote on such action
shall be effective unless the proposed action shall have been approved by the Board of Directors
before the consent of shareholders is executed.
3
ARTICLE III
DIRECTORS
3.1 Number and Residence. The business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors consisting of not less than three nor more than fifteen
members. The number of directors shall be determined from time to time by a resolution adopted by
an affirmative vote of the entire Board of Directors. Directors need not be Michigan residents or
shareholders of the Corporation.
3.2 Classes, Election and Term. The directors shall be divided into three classes, designated
Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of
one-third of the total number of directors constituting the entire Board of Directors. When this
Section 3.2 becomes first effective, the term of office of Class I directors shall end on the first
annual stockholders’ meeting after their election; the term of office of Class II directors shall
end on the second annual stockholders’ meeting after their election; and the term of office of
Class III directors shall end on the third annual stockholders’ meeting after their election. At
each annual meeting thereafter, a number of directors equal to the number of the class whose term
expires at the time of the meeting shall be elected to hold office for a term that shall expire on
the third succeeding annual meeting.
If the number of directors is changed, any increase or decrease shall be apportioned among the
classes of directors so as to maintain the number of directors in each class as nearly equal as
possible, but in no case will a decrease in the number of directors shorten the term of any
incumbent director. When the number of directors is increased by the Board of Directors and any
newly created directorships are filled by the Board, the additional directors shall be classified
as provided by the Board of Directors.
Notwithstanding the foregoing, whenever the holders of any one or more classes of preferred stock
or series thereof issued by the Corporation shall have the right, voting separately by class or
series, to elect directors at an annual or special meeting of shareholders, the election, term of
office, filling of vacancies and other features of such directorship shall be governed by the terms
of these Bylaws applicable thereto, except that such directors so elected shall not be divided into
classes pursuant to this Article.
3.3 Resignation. A director may resign by written notice to the Corporation. A director’s
resignation is effective upon its receipt by the Corporation or a later time set forth in the
notice of resignation.
3.4 Removal. One or more directors may be removed only for cause by vote of the holders of a
majority of the shares entitled to vote at an election of directors.
3.5 Vacancies. A director shall hold office until the meeting for the year in which his or
her term expires and until his or her successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement, disqualification or removal from office.
Vacancies, including vacancies resulting from an increase in the number of directors, may be
4
filled by the Board of Directors, by the affirmative vote of a majority of all the directors
remaining in office. If the number of directors then in office is less than a quorum, such newly
created directorships and vacancies may be filled by a majority of the directors then in office,
although less than a quorum, or by the sole remaining director. A director elected by the Board of
Directors to fill a vacancy shall hold office until the next election of the class for which the
director shall have been chosen and until his or her successor shall be elected and shall qualify.
3.6 Place of Meetings. The Board of Directors may hold meetings at any location. The
location of annual and regular Board of Directors’ meetings shall be determined by the Board and
the location of special meetings shall be determined by the person calling the meeting.
3.7 Annual Meetings. Each newly elected Board of Directors may meet promptly after the annual
shareholders’ meeting for the purposes of electing officers and transacting such other business as
may properly come before the meeting. No notice of the annual directors’ meeting shall be
necessary to the newly elected directors in order to legally constitute the meeting, provided a
quorum is present.
3.8 Regular Meetings. Regular meetings of the Board of Directors or Board committees may be
held without notice at such places and times as the Board or committee determines at least 30 days
before the date of the meeting.
3.9 Special Meetings. Special meetings of the Board of Directors may be called by the chief
executive officer, and shall be called by the President or Secretary upon the written request of
two directors, on two days notice to each director or committee member by mail or 24 hours notice
by any other means provided in Section 5.1. The notice must specify the place, date and time of
the special meeting, but need not specify the business to be transacted at, nor the purpose of, the
meeting. Special meetings of Board committees may be called by the Chairperson of the committee or
a majority of committee members pursuant to this Section 3.9.
3.10 Quorum. At all meetings of the Board or a Board committee, a majority of the directors
then in office, or of members of such committee, constitutes a quorum for transaction of business,
unless a higher number is otherwise required by the Articles of Incorporation, these Bylaws or the
Board resolution establishing such Board committee. If a quorum is not present at any Board or
Board committee meeting, a majority of the directors present at the meeting may adjourn the meeting
to another time and place without notice other than announcement at the meeting. Any business may
be transacted at the adjourned meeting which might have been transacted at the original meeting,
provided a quorum is present.
3.11 Voting. The vote of a majority of the members present at any Board or Board committee
meeting at which a quorum is present constitutes the action of the Board of Directors or of the
Board committee, unless a higher vote is otherwise required by the Michigan Business Corporation
Act, the Articles of Incorporation, these Bylaws, or the Board resolution establishing the Board
committee.
3.12 Telephonic Participation. Members of the Board of Directors or any Board committee may
participate in a Board or Board committee meeting by means of conference
5
telephone or similar communications equipment through which all persons participating in the
meeting can communicate with each other. Participation in a meeting pursuant to this Section 3.12
constitutes presence in person at such meeting.
3.13 Action by Written Consent. Any action required or permitted to be taken under
authorization voted at a Board or Board committee meeting may be taken without a meeting if, before
or after the action, all members of the Board then in office or of the Board committee consent to
the action in writing. Such consents shall be filed with the minutes of the proceedings of the
Board or committee and shall have the same effect as a vote of the Board or committee for all
purposes.
3.14 Additional Committees. The Board of Directors may, by resolution passed by a majority of
the directors then in office, designate one or more committees, each consisting of one or more
directors. The Board may designate one or more directors as alternate members of a committee, who
may replace an absent or disqualified member at a committee meeting. In the absence or
disqualification of a member of a committee, the committee members present and not disqualified
from voting, regardless of whether they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in place of such absent or disqualified member.
Any committee, to the extent provided in the resolution of the Board, may exercise all powers and
authority of the Board of Directors in management of the business and affairs of the Corporation,
except a committee does not have power or authority to:
(a) Amend the Articles of Incorporation.
(b) Adopt an agreement of merger or share exchange.
(c) Recommend to shareholders the sale, lease or exchange of all or substantially
all of the Corporation’s property and assets.
(d) Recommend to shareholders a dissolution of the Corporation or a revocation of a
dissolution.
(e) Amend the Bylaws of the Corporation.
(f) Unless the resolution designating the committee or a later Board of Director’s
resolution expressly so provides, declare a distribution or dividend or authorize the
issuance of shares.
Each committee and its members shall serve at the pleasure of the Board, which may at any time
change the members and powers of, or discharge, the committee. Each committee shall keep regular
minutes of its meetings and report them to the Board of Directors when required.
3.15 Compensation. The Board, by affirmative vote of a majority of directors in office and
irrespective of any personal interest of any of them, may establish reasonable compensation of
directors for services to the Corporation as directors, officers or
members of a Board committee. No such payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation for such service.
3.16 Amendment. This Article III may not be amended by less than unanimous written consent of
shareholders, and may only be amended by the affirmative vote of a majority of the shares entitled
to vote thereon, in addition to the vote otherwise required by the Michigan Business Corporation
Act.
6
ARTICLE IV
OFFICERS
4.1 Officers and Agents. The Board of Directors, at its first meeting after each annual
meeting of shareholders, shall elect a President, a Secretary and a Treasurer, and may also elect
and designate as officers a Chairperson of the Board, a Vice Chairperson of the Board and one or
more Executive Vice Presidents, Vice Presidents, Assistant Vice Presidents, Assistant Secretaries
and Assistant Treasurers. The Board of Directors may also from time to time appoint, or delegate
authority to the Corporation’s chief executive officer to appoint, such other officers and agents
as it deems advisable. Any number of offices may be held by the same person, but an officer shall
not execute, acknowledge or verify an instrument in more than one capacity if the instrument is
required by law to be executed, acknowledged or verified by two or more officers. An officer has
such authority and shall perform such duties in the management of the Corporation as provided in
these Bylaws, or as may be determined by resolution of the Board of Directors not inconsistent with
these Bylaws, and as generally pertain to their offices, subject to the control of the Board of
Directors.
4.2 Compensation. The compensation of all officers of the Corporation shall be fixed by the
Board of Directors.
4.3 Term. Each officer of the Corporation shall hold office for the term for which he or she
is elected or appointed and until his or her successor is elected or appointed and qualified, or
until his or her resignation or removal. The election or appointment of an officer does not, by
itself, create contract rights.
4.4 Removal. An officer elected or appointed by the Board of Directors may be removed by the
Board of Directors with or without cause. The removal of an officer shall be without prejudice to
his or her contract rights, if any.
4.5 Resignation. An officer may resign by written notice to the Corporation. The resignation
is effective upon its receipt by the Corporation or at a subsequent time specified in the notice of
resignation.
4.6 Vacancies. Any vacancy occurring in any office of the Corporation shall be filled by the
Board of Directors.
7
4.7 Chairperson of the Board. The Chairperson of the Board, if such office is filled, shall
be a director and shall preside at all shareholders’ and Board of Directors’ meetings.
4.8 Chief Executive Officer. The Chairperson of the Board, if any, or the President, as
designated by the Board, shall be the chief executive officer of the Corporation and shall have the
general powers of supervision and management of the business and affairs of the Corporation usually
vested in the chief executive officer of a corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. If no designation of chief
executive officer is made, or if there is no Chairperson of the Board, the President shall be the
chief executive officer. The chief executive officer may delegate to the other officers such of
his or her authority and duties at such time and in such manner as he or she deems advisable.
4.9 President. If the office of Chairperson of the Board is not filled, the President shall
perform the duties and execute the authority of the Chairperson of the Board. If the Chairperson
of the Board is designated by the Board as the Corporation’s chief executive officer, the President
shall be the chief operating officer of the Corporation, shall assist the Chairperson of the Board
in the supervision and management of the business and affairs of the Corporation and, in the
absence of the Chairperson of the Board, shall preside at all shareholders’ and Board of Directors’
meetings. The President may delegate to the officers other than the Chairperson of the Board, if
any, such of his or her authority and duties at such time and in such manner as he or she deems
appropriate.
4.10 Executive Vice Presidents and Vice Presidents. The Executive Vice Presidents and Vice
Presidents shall assist and act under the direction of the Corporation’s chief executive officer,
unless otherwise determined by the Board of Directors or the chief executive officer. The Board of
Directors may designate one or more Executive Vice Presidents and may grant other Vice Presidents
titles which describe their functions or specify their order of seniority. In the absence or
disability of the President, the authority of the President shall descend to the Executive Vice
Presidents or, if there are none, to the Vice Presidents in the order of seniority indicated by
their titles or otherwise specified by the Board. If not specified by their titles or the Board,
the authority of the President shall descend to the Executive Vice Presidents or, if there are
none, to the Vice Presidents, in the order of their seniority in such office.
4.11 Secretary. The Secretary shall act under the direction of the Corporation’s chief
executive officer and President. The Secretary shall attend all shareholders’ and Board of
Directors’ meetings, record minutes of the proceedings and maintain the minutes and all documents
evidencing corporate action taken by written consent of the shareholders and Board of Directors in
the Corporation’s minute books. The Secretary shall perform these duties for Board committees when
required. The Secretary shall see to it that all notices of shareholders’ meetings and special
Board of Directors’ meetings are duly given in accordance with applicable law, the Articles of
Incorporation and these Bylaws. The Secretary shall have custody of the Corporation’s seal and,
when authorized by the Corporation’s chief executive officer, President or the Board of Directors,
shall affix the seal to any instrument requiring it and attest such instrument.
8
4.12 Treasurer. The Treasurer shall act under the direction of the Corporation’s chief
executive officer and President. The Treasurer shall have custody of the corporate funds and
securities and shall keep full and accurate accounts of the Corporation’s assets, liabilities,
receipts and disbursements in books belonging to the Corporation. The Treasurer shall deposit all
moneys and other valuables in the name and to the credit of the Corporation in such depositories as
may be designated by the Board of Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Corporation’s chief executive officer, the President or the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
Corporation’s chief executive officer, the President and the Board of Directors (at its regular
meetings or whenever they request it) an account of all his or her transactions as Treasurer and of
the financial condition of the Corporation. If required by the Board of Directors, the Treasurer
shall give the Corporation a bond for the faithful discharge of his or her duties in such amount
and with such surety as the Board prescribes.
4.13 Assistant Vice Presidents, Secretaries and Treasurers. The Assistant Vice Presidents,
Assistant Secretaries and Assistant Treasurers, if any, shall act under the direction of the
Corporation’s chief executive officer, the President and the officer they assist. In the order of
their seniority, the Assistant Secretaries shall, in the absence or disability of the Secretary,
perform the duties and exercise the authority of the Secretary. The Assistant Treasurers, in the
order of their seniority, shall, in the absence or disability of the Treasurer, perform the duties
and exercise the authority of the Treasurer.
4.14 Execution of Contracts and Instruments. The Board of Directors may designate an officer
or agent with authority to execute any contract or other instrument on the Corporation’s behalf;
the Board may also ratify or confirm any such execution. If the Board authorizes, ratifies or
confirms the execution of a contract or instrument without specifying the authorized executing
officer or agent, the Corporation’s chief executive officer, the President, any Executive Vice
President or Vice President or the Treasurer may execute the contract or instrument in the name
and on behalf of the Corporation and may affix the corporate seal to such document or instrument.
4.15 Voting of Shares and Securities of Other Corporations and Entities. Unless the Board of
Directors otherwise directs, the Corporation’s chief executive officer shall be entitled to vote or
designate a proxy to vote all shares and other securities which the Corporation owns in any other
corporation or entity.
ARTICLE V
NOTICES AND WAIVERS OF NOTICE
5.1 Delivery of Notices. All written notices to shareholders, directors and Board committee
members shall be given personally or by mail (registered, certified or other first class mail, with
postage pre-paid), addressed to such person at the address designated by him or her for that
purpose or, if none is designated, at his or her last known address. Written notices to directors
or Board committee members may also be delivered at his or her office on the
9
Corporation’s premises, if any, or by overnight carrier, telegram, telex, telecopy, radiogram,
cablegram, facsimile, computer transmission or similar form of communication, addressed to the
address referred to in the preceding sentence. Notices given pursuant to this Section 5.1 shall be
deemed to be given when dispatched, or, if mailed, when deposited in a post office or official
depository under the exclusive care and custody of the United States postal service. Notices given
by overnight carrier shall be deemed “dispatched” at 9:00 a.m. on the day the overnight carrier is
reasonably requested to deliver the notice. The Corporation shall have no duty to change the
written address of any director, Board committee member or shareholder unless the Secretary
receives written notice of such address change.
5.2 Waiver of Notice. Action may be taken without a required notice and without lapse of a
prescribed period of time, if at any time before or after the action is completed the person
entitled to notice or to participate in the action to be taken or, in the case of a shareholder,
his or her attorney-in-fact, submits a signed waiver of the requirements, or if such requirements
are waived in such other manner permitted by applicable law. Neither the business to be transacted
at, nor the purpose of, the meeting need be specified in the written waiver of notice. Attendance
at any shareholders’ meeting (in person or by proxy) will result in both of the following:
(a) Waiver of objection to lack of notice or defective notice of the meeting,
unless the shareholder at the beginning of the meeting objects to holding the meeting
or transacting business at the meeting.
(b) Waiver of objection to consideration of a particular matter at the meeting that
is not within the purpose or purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it is presented. A director’s
attendance at or participation in any Board or Board committee meeting waives any
required notice to him or her of the meeting unless he or she, at the beginning of the
meeting or upon his or her arrival, objects to the meeting or the transacting of
business at the meeting and does not thereafter vote for or assent to any action taken
at the meeting.
ARTICLE VI
SHARE CERTIFICATES AND SHAREHOLDERS OF RECORD
6.1 Certificates for Shares. The shares of the Corporation shall be represented by
certificates signed by the Chairperson of the Board, Vice-chairperson of the Board, President or a
Vice-president. The certificates also may be signed by another officer of the Corporation. The
officers’ signatures may be facsimiles if the certificate is countersigned by a transfer agent or
registered by a registrar other than the Corporation or its employee. If any officer who has signed
or whose facsimile signature has been placed upon a certificate ceases to be such officer before
the certificate is issued, it may be issued by the Corporation with the same effect as if the
person were such officer at the date of issue. Notwithstanding the foregoing, the Corporation may
issue some or all of the shares without certificates to the fullest extent permitted by law. Within
a reasonable time after the issuance or transfer of shares without certificates, the Corporation
shall
10
send the shareholder a written statement of the information required on certificates by applicable
law.
6.2 Lost or Destroyed Certificates. The Board of Directors may direct or authorize an officer
to direct that a new certificate for shares be issued in place of any certificate alleged to have
been lost or destroyed. When authorizing such issue of a new certificate, the Board of Directors or
officer may, in its discretion and as a condition precedent to the issuance thereof, require the
owner (or the owner’s legal representative) of such lost or destroyed certificate to give the
Corporation an affidavit claiming that the certificate is lost or destroyed or a bond in such sum
as it may direct as indemnity against any claim that may be made against the Corporation with
respect to such old or new certificate.
6.3 Transfer of Shares. Certificated shares of the Corporation are transferable only on the
Corporation’s stock transfer books upon surrender to the Corporation or its transfer agent of a
certificate for the shares, duly endorsed for transfer, and the presentation of such evidence of
ownership and validity of the transfer as the Corporation requires. Transfers of uncertificated
shares shall be made by such written instrument as the Board of Directors shall from time to time
specify, and such proof of the authenticity of the signature as the Corporation or its agents may
reasonably require.
6.4 Record Date. The Board of Directors may fix, in advance, a date as the record date for
determining shareholders for any purpose, including determining shareholders entitled to (a) notice
of, and to vote at, any shareholders’ meeting or any adjournment of such meeting; (b) express
consent to, or dissent from, a proposal without a meeting; or (c) receive payment of a share
dividend or distribution or allotment of a right. The record date shall not be more than 60 nor
less than 10 days before the date of the meeting, nor more than 10 days after the Board resolution
fixing a record date for determining shareholders entitled to express consent to, or dissent from,
a proposal without a meeting, nor more than 60 days before any other action.
If a record date is not fixed:
(a) the record date for determining the shareholders entitled to notice of, or to
vote at, a shareholders’ meeting shall be the close of business on the day next
preceding the day on which notice of the meeting is given, or, if no notice is given,
the close of business on the day next preceding the day on which the meeting is held;
and
(b) if prior action by the Board of Directors is not required with respect to the
corporate action to be taken without a meeting, the record date for determining
shareholders entitled to express consent to, or dissent from, a proposal without a
meeting, shall be the first date on which a signed written consent is properly
delivered to the Corporation; and
(c) the record date for determining shareholders for any other purpose shall be the
close of business on the day on which the resolution of the Board of Directors relating
to the action is adopted.
11
A determination of shareholders of record entitled to notice of, or to vote at, a shareholders’
meeting shall apply to any adjournment of the meeting, unless the Board of Directors fixes a new
record date for the adjourned meeting
Only shareholders of record on the record date shall be entitled to notice of, or to participate
in, the action to which the record date relates, notwithstanding any transfer of shares on the
Corporation’s books after the record date. This Section 6.4 shall not affect the rights of a
shareholder and the shareholder’s transferor or transferee as between themselves.
6.5 Registered Shareholders. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of a share for all purposes, including
notices, voting, consents, dividends and distributions, and shall not be bound to recognize any
other person’s equitable or other claim to interest in such share, regardless of whether it has
actual or constructive notice of such claim or interest.
ARTICLE VII
INDEMNIFICATION
The Corporation shall, to the fullest extent authorized or permitted by the Michigan Business
Corporation Act, (a) indemnify any person, and his or her heirs, personal representatives,
executors, administrators and legal representatives, who was, is, or is threatened to be made, a
party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal,
administrative or investigative) by reason of the fact that such person is or was a director or
officer of the Corporation or is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise (collectively, “Covered Matters”); and (b) pay or reimburse the reasonable expenses
incurred by such person and his or her heirs, executors, administrators and legal representatives
in connection with any Covered Matter in advance of final disposition of such Covered Matter. The
Corporation may provide such other indemnification to directors, officers, employees and agents by
insurance, contract or otherwise as is permitted by law and authorized by the Board of Directors.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Checks and Funds. All checks, drafts or demands for money and notes of the Corporation
must be signed by such officer or officers or such other person or persons as the Board of
Directors from time to time designates. All funds of the Corporation not otherwise employed shall
be deposited or used as the Board of Directors from time to time designates.
8.2 Fiscal Year. The fiscal year of the Corporation shall end on such date as the Board of
Directors from time to time determines.
12
8.3 Corporate Seal. The Board of Directors may adopt a corporate seal for the Corporation.
The corporate seal, if adopted, shall be circular and contain the name of the Corporation and the
words “Corporate Seal Michigan”. The seal may be used by causing it or a facsimile of it to be
impressed, affixed, reproduced or otherwise.
8.4 Books and Records. The Corporation shall keep within or outside of Michigan books and
records of account and minutes of the proceedings of its shareholders, Board of Directors and Board
committees, if any. The Corporation shall keep at its registered office or at the office of its
transfer agent within or outside of Michigan records containing the names and addresses of all
shareholders, the number, class and series of shares held by each and the dates when they
respectively became recordholders of shares. Any of such books, records or minutes may be in
written form or in any other form capable of being converted into written form within a reasonable
time.
8.5 Financial Statements. The Corporation shall cause to be made and distributed to its
shareholders, within four months after the end of each fiscal year, a financial report (including a
statement of income, year-end balance sheet, and, if prepared by the Corporation, its statement of
sources and application of funds) covering the preceding fiscal year of the Corporation.
8.6 Application of Chapter 7A of the Michigan Business Corporation Act. Pursuant to Section
784(1)(b) of the Michigan Business Corporation Act, the Corporation elects not to be governed by
Chapter 7A of the Michigan Business Corporation Act, being Sections 775 through 784 of the Michigan
Business Corporation Act; provided that the Corporation’s Board of Directors may terminate this
election in whole or in part by action of a majority of directors then in office.
ARTICLE IX
AMENDMENTS
These Bylaws may be amended or repealed, or new Bylaws may be adopted, by action of either the
shareholders or a majority of the Board of Directors then in office. The Articles of Incorporation
or these Bylaws may from time to time specify particular provisions of the Bylaws which may not be
altered or repealed by the Board of Directors.
ARTICLE X
SCOPE OF BYLAWS
These Bylaws govern the regulation and management of the affairs of the Corporation to the
extent that they are consistent with applicable law and the Articles of Incorporation; to the
extent they are not consistent, applicable law and the Articles of Incorporation shall govern.
13
Exhibit
10.22
Director Version
STOCK OPTION AGREEMENT
[NAME]
THIS
AGREEMENT, dated as of ___ (the “Grant Date”), is made by and between
Rockwell Medical Technologies, Inc., a Michigan corporation (the “Company”), and the individual
whose name is set forth on the signature page hereof, who is a director of the Company (the
“Optionee”). Any capitalized terms used herein but not otherwise defined shall have the meaning set
forth in the Company’s 2007 Long Term Incentive Plan (the “Plan”).
WHEREAS, the Company wishes to afford the Optionee the opportunity to purchase shares of its
common stock (the “Common Stock”) pursuant to the terms and conditions of this Agreement and the
Plan, the terms of which are hereby incorporated by reference and made a part of this Agreement;
and
WHEREAS, the Committee has determined that it would be in the best interest of the Company and
its shareholders to grant the Option provided for herein to the Optionee as an incentive for
increased efforts during his term of office with the Company or its Subsidiaries, has approved the
grant of the Option on the Grant Date and has advised the Company thereof and instructed the
undersigned officer to issue said Option.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
ARTICLE I
OPTION GRANT
1.1.
Grant of Options
. For good and valuable consideration, on and as of the date
hereof, the Company irrevocably grants to the Optionee a Nonqualified Stock Option to purchase
shares of Common Stock upon the terms and conditions set forth in this Agreement (the
“Option”).
1.2.
Exercise Price
. Subject to Section 2.1, the exercise price of the shares of
Common Stock covered by the Option shall be
$
per share without commission or other charge
(which is the Fair Market Value per share of the Common Stock on the Grant Date).
ARTICLE II
ADJUSTMENTS
2.1.
Adjustments to Option
. In the event of a merger, reorganization, consolidation,
recapitalization, dividend or distribution (whether in cash, shares or other property), stock
split, reverse stock split, spin-off or similar transaction or other change in corporate structure
affecting the Common Stock or the value thereof, such adjustments and other substitutions shall be
made to the Option as the Committee, in its sole discretion, deems equitable or appropriate,
including adjustments in the number, class, kind and exercise price of securities subject to the
Option (including, if the Committee deems appropriate, the
substitution of similar options to purchase the shares of another company, as the Committee may determine to be appropriate in its
sole discretion).
ARTICLE III
PERIOD OF EXERCISABILITY
3.1.
Exercisability of Option
.
(a) So long as the Optionee continues to serve as a director of the Company, the Option shall
become exercisable pursuant to the following schedule:
|
|
|
|
|
|
|
|
|
Percentage of Shares As to Which Option
|
|
Date Option Becomes Exercisable
|
|
Is Exercisable On and After Such Date
|
|
On and after the first anniversary of the
Grant Date
|
|
|
33
|
%
|
|
On and after the second anniversary of
the Grant Date
|
|
|
67
|
%
|
|
On and after the third anniversary of the
Grant Date
|
|
|
100
|
%
|
(b) Notwithstanding the foregoing, the Option shall become immediately exercisable as to 100%
of the shares of Common Stock subject to such Option (but only to the extent such Option has not
otherwise terminated or become exercisable) and may be exercised at any time on or before the tenth
anniversary of the Grant Date (i) if the Optionee ceases to be a director due to Optionee’s death
or Disability, or (ii) immediately prior to a Change in Control; provided, however, that this
Section 3.1(b)(ii) is subject to the Committee’s rights, in the event of a Change in Control, to
cash out the Option pursuant to Section 9.2(b) of the Plan or to declare, pursuant to Section
9.2(c) of the Plan, that the Option shall not become immediately exercisable upon a Change in
Control in which the successor company assumes the Option.
3.2
Expiration of Option
. The Option may not be exercised after the first to occur of
the following events and shall in no event be exercisable after the tenth anniversary of the Grant
Date:
(a) If, prior to the date when the Option first becomes exercisable, Optionee ceases to be a
director for any reason other than death or Disability, Optionee’s right to exercise the Option
shall terminate and all rights thereunder shall cease;
(b) If, on or after the date when the Option first becomes exercisable, Optionee ceases to be
a director for any reason other than death or Disability, Optionee shall have the right, within
three months after termination of employment to exercise the Option to the extent that it
was exercisable and unexercised on the date of Optionee’s termination of employment, subject
to any other limitation on the exercise of the Option in effect on the date of exercise; or
2
(c) If Optionee ceases to be a director due to death or Disability before the tenth
anniversary of the Grant Date, Optionee or the person or persons to whom the Option shall have been
transferred by will or the laws of descent and distribution shall have the right within the
exercise period specified in this Agreement to exercise the Option to the extent that it was
exercisable and unexercised on the Optionee’s date of death or Disability, subject to any other
limitation on exercise in effect on the date of exercise.
3.3.
Committee Discretion
. The Committee, at the time of Optionee’s termination of
employment, subject to the limitations set forth in the Plan, may accelerate Optionee’s right to
exercise the Option or, subject to Code Section 409A, may extend the Option term.
ARTICLE IV
EXERCISE OF OPTION
4.1.
Person Eligible to Exercise
. During the lifetime of the Optionee, only the
Optionee may exercise the Option or any portion thereof. After the death of the Optionee, any
exercisable portion of an Option may, prior to the time when an Option becomes unexercisable under
Sections 3.1 or 3.2, be exercised by his personal representative or by any person empowered to do
so under the Optionee’s will or under the then applicable laws of descent and distribution.
4.2.
Partial Exercise
. Any exercisable portion of an Option or the entire Option, if
then wholly exercisable, may be exercised in whole or in part at any time prior to the time when
the Option or portion thereof becomes unexercisable under Sections 3.1 or 3.2 of this Agreement;
provided, however, that any partial exercise shall be for whole shares of Common Stock only.
4.3.
Manner of Exercise
. The exercise price for shares of Common Stock to be acquired
upon exercise of the Option shall be paid in full in cash or by personal check, bank draft or money
order at the time of exercise; provided, however, that in lieu of such form of payment, subject to
the limitations set forth in Section 2.4 of the Plan, payment may be made by (a) delivery and
transfer, in a manner acceptable to the Company’s Secretary in his sole discretion, to the Company
of outstanding shares of Common Stock that have been held at least six months; (b) by delivery to
the Company’s Secretary or his designee of a properly executed exercise notice, acceptable to the
Company, together with irrevocable instructions to the Optionee’s broker to deliver to the Company
sufficient cash to pay the exercise price and any applicable income and employment withholding
taxes, in accordance with a written agreement between the Company and the brokerage firm; or (c)
any other method permitted in Section 2.4 of the Plan. Shares of Common Stock surrendered upon
exercise shall be valued at the Stock Exchange closing price for the Common Stock on the day prior
to exercise.
4.4.
Conditions to Issuance of Stock Certificates
. The Company shall not be required
to issue or deliver any certificate or certificates for shares of stock purchased upon the exercise
of an Option or portion thereof prior to fulfillment of all of the following conditions:
3
(a) The obtaining of approval or other clearance from any state or federal governmental agency
or stock exchange which the Committee shall, in its reasonable and good faith discretion, determine
to be necessary or advisable; and
(b) The receipt by the Company of such assurance of compliance with federal and state
securities laws as it may deem necessary or advisable.
4.5.
Rights as Stockholder
. The holder of the Option shall not be, nor have any of
the rights or privileges of, a stockholder of the Company in respect of any shares purchasable upon
the exercise of the Option or any portion thereof unless and until a certificate or certificates
representing such shares shall have been issued by the Company to such holder or a book entry
representing such shares has been made and such shares have been deposited with the appropriate
registered book-entry custodian. The Company shall not be liable to the Optionee for damages
relating to any delay in issuing shares or a stock certificate to Optionee, any loss of a
certificate, or any mistakes or errors in the issuance of shares or a certificate to Optionee.
4.6.
Withholding
. To the extent applicable, the Company shall have the right to
withhold from Optionee’s compensation or to require Optionee to remit sufficient funds to satisfy
applicable withholding tax obligations upon the exercise of an Option. Subject to the limitations
in Section 10.5 of the Plan, Optionee may, in order to fulfill the withholding obligation, make
payment to the Company in any manner permitted under Section 10.5 of the Plan. The Company shall
not withhold from the exercise of an Option more shares than are necessary to meet the established
tax withholding requirements of federal, state and local obligations. The Company shall be
authorized to take such action as may be necessary, in the opinion of the Company’s counsel
(including, without limitation, withholding vested Common Stock otherwise deliverable to the
Optionee and/or withholding amounts from any compensation or other amount owing from the Company to
the Optionee), to satisfy the obligations for payment of the minimum amount of any such taxes.
ARTICLE V
MISCELLANEOUS
5.1.
Option Not Transferable
. Neither the Option nor any interest or right therein or
part thereof shall be liable for the debts, contracts or engagements of the Optionee or his
successors in interest or shall be subject to disposition by transfer, alienation, anticipation,
pledge, encumbrance, assignment or any other means whether such disposition be voluntary or
involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or
equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null
and void and of no effect; provided, however, that this Section 5.1 shall not prevent transfers by
will or by the applicable laws of descent and distribution, or transfers to which the Committee has
given prior written consent subject to the conditions set forth in Section 10.3(a) of the Plan.
5.2.
Notices
. Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be given to the
Optionee shall be addressed to him or her at the address stated in the Company’s records. By a
notice given pursuant to this Section 5.2, either party may hereafter designate a different address
for notices to be given to the party. Any notice, which is required to be given to the
4
Optionee, shall, if the Optionee is then deceased, be given to the Optionee’s personal
representative if such representative has previously informed the Company of his status and address
by written notice under this Section 5.2. Any notice shall have been deemed duly given when
enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with postage
prepaid) in a post office or branch post office regularly maintained by the United States Postal
Service or when delivered personally to the Secretary or Optionee.
5.3.
Amendment
. Subject to Sections 2.1 and 3.3 of this Agreement and the terms of
the Plan, this Agreement may be amended only by a writing executed by the parties hereto if such
amendment would adversely affect Optionee. Any such amendment shall specifically state that it is
amending this Agreement.
5.4.
Governing Law
. The laws of the State of Michigan shall govern the
interpretation, validity and performance of the terms of this Agreement regardless of the law that
might be applied under principles of conflicts of laws.
5.5.
No Guarantee of Employment
. Nothing in this Agreement or in the Plan shall
confer upon the Optionee any right to continue in the employ of the Company or any Subsidiary or
shall interfere with or restrict in any way the rights of the Company and its Subsidiaries, which
are hereby expressly reserved, to terminate the employment of the Optionee at any time for any
reason whatsoever, with or without cause, subject to the applicable provisions of, if any, the
Optionee’s employment agreement with the Company.
5.6
Plan Terms Control
. In the event of any conflict between the Plan and this
Agreement, the terms of the Plan shall control, it being understood that variations in this
Agreement from terms set forth in the Plan shall not be considered to be in conflict if the Plan
permits such variations.
[Signatures on next page.]
5
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Grant Date.
|
|
|
|
|
|
|
|
|
|
|
|
|
ROCKWELL MEDICAL TECHNOLOGIES, INC.
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
OPTIONEE:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Name]
|
|
|
6
Exhibit
10.23
Employee Version
STOCK OPTION AGREEMENT
[NAME]
THIS AGREEMENT, dated as of
(the “Grant Date”), is made by and between
Rockwell Medical Technologies, Inc., a Michigan corporation (the “Company”), and the individual
whose name is set forth on the signature page hereof, who is an employee of the Company or a
Subsidiary of the Company (the “Optionee”). Any capitalized terms used herein but not otherwise
defined shall have the meaning set forth in the Company’s 2007 Long Term Incentive Plan (the
“Plan”).
WHEREAS, the Company wishes to afford the Optionee the opportunity to purchase shares of its
common stock (the “Common Stock”) pursuant to the terms and conditions of this Agreement and the
Plan, the terms of which are hereby incorporated by reference and made a part of this Agreement;
and
WHEREAS, the Committee has determined that it would be in the best interest of the Company and
its shareholders to grant the Option provided for herein to the Optionee as an incentive for
increased efforts during his term of office with the Company or its Subsidiaries, has approved the
grant of the Option on the Grant Date and has advised the Company thereof and instructed the
undersigned officer to issue said Option.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
ARTICLE I
OPTION GRANT
1.1.
Grant of Options
. For good and valuable consideration, on and as of the date
hereof, the Company irrevocably grants to the Optionee a Nonqualified Stock Option to purchase
shares of Common Stock upon the terms and conditions set forth in this Agreement (the
“Option”).
1.2.
Exercise Price
. Subject to Section 2.1, the exercise price of the shares of
Common Stock covered by the Option shall be $
per share without commission or other charge
(which is the Fair Market Value per share of the Common Stock on the Grant Date).
ARTICLE II
ADJUSTMENTS
2.1.
Adjustments to Option
. In the event of a merger, reorganization, consolidation,
recapitalization, dividend or distribution (whether in cash, shares or other property), stock
split, reverse stock split, spin-off or similar transaction or other change in corporate structure
affecting the Common Stock or the value thereof, such adjustments and other substitutions shall be
made to the Option as the Committee, in its sole discretion, deems equitable or appropriate,
including adjustments in the number, class, kind and exercise price of securities subject to the
Option (including, if the Committee deems appropriate, the substitution of similar options to
purchase the shares of another company, as the Committee may determine to be appropriate in its sole
discretion).
ARTICLE III
PERIOD OF EXERCISABILITY
3.1.
Exercisability of Option
.
(a) So long as the Optionee continues to be employed by the Company or any of its
Subsidiaries, the Option shall become exercisable pursuant to the following schedule:
|
|
|
|
|
|
|
|
|
Percentage of Shares As to
|
|
|
|
Which Option Is Exercisable On
|
|
Date Option Becomes Exercisable
|
|
and After Such Date
|
|
On and after the first anniversary of the
Grant Date
|
|
|
33
|
%
|
|
On and after the second anniversary of
the Grant Date
|
|
|
67
|
%
|
|
On and after the third anniversary of the
Grant Date
|
|
|
100
|
%
|
(b) Notwithstanding the foregoing, the Option shall become immediately exercisable as to 100%
of the shares of Common Stock subject to such Option (but only to the extent such Option has not
otherwise terminated or become exercisable) and may be exercised at any time on or before the tenth
anniversary of the Grant Date (i) if the Optionee ceases to be employed due to Optionee’s death or
Disability, or (ii) immediately prior to a Change in Control; provided, however, that this Section
3.1(b)(ii) is subject to the Committee’s rights, in the event of a Change in Control, to cash out
the Option pursuant to Section 9.2(b) of the Plan or to declare, pursuant to Section 9.2(c) of the
Plan, that the Option shall not become immediately exercisable upon a Change in Control in which
the successor company assumes the Option.
3.2
Expiration of Option
. The Option may not be exercised after the first to occur of
the following events and shall in no event be exercisable after the tenth anniversary of the Grant
Date:
(a) If, prior to the date when the Option first becomes exercisable, Optionee’s employment
terminates for any reason other than death or Disability, Optionee’s right to exercise the Option
shall terminate and all rights thereunder shall cease;
(b) If, on or after the date when the Option first becomes exercisable, Optionee’s employment
terminates for any reason other than death or Disability, Optionee shall have the right, within
three months after termination of employment to exercise the Option to the extent that it was
exercisable and unexercised on the date of Optionee’s termination of employment, subject to any
other limitation on the exercise of the Option in effect on the date of exercise; or
2
(c) If Optionee’s employment terminates due to death or Disability before the tenth
anniversary of the Grant Date, Optionee or the person or persons to whom the Option shall have been
transferred by will or the laws of descent and distribution shall have the right within the
exercise period specified in this Agreement to exercise the Option to the extent that it was
exercisable and unexercised on the Optionee’s date of death or Disability, subject to any other
limitation on exercise in effect on the date of exercise.
3.3.
Committee Discretion
. The Committee, at the time of Optionee’s termination of
employment, subject to the limitations set forth in the Plan, may accelerate Optionee’s right to
exercise the Option or, subject to Code Section 409A, may extend the Option term.
ARTICLE IV
EXERCISE OF OPTION
4.1.
Person Eligible to Exercise
. During the lifetime of the Optionee, only the
Optionee may exercise the Option or any portion thereof. After the death of the Optionee, any
exercisable portion of an Option may, prior to the time when an Option becomes unexercisable under
Sections 3.1 or 3.2, be exercised by his personal representative or by any person empowered to do
so under the Optionee’s will or under the then applicable laws of descent and distribution.
4.2.
Partial Exercise
. Any exercisable portion of an Option or the entire Option, if
then wholly exercisable, may be exercised in whole or in part at any time prior to the time when
the Option or portion thereof becomes unexercisable under Sections 3.1 or 3.2 of this Agreement;
provided, however, that any partial exercise shall be for whole shares of Common Stock only.
4.3.
Manner of Exercise
. The exercise price for shares of Common Stock to be acquired
upon exercise of the Option shall be paid in full in cash or by personal check, bank draft or money
order at the time of exercise; provided, however, that in lieu of such form of payment, subject to
the limitations set forth in Section 2.4 of the Plan, payment may be made by (a) delivery and
transfer, in a manner acceptable to the Company’s Secretary in his sole discretion, to the Company
of outstanding shares of Common Stock that have been held at least six months; (b) by delivery to
the Company’s Secretary or his designee of a properly executed exercise notice, acceptable to the
Company, together with irrevocable instructions to the Optionee’s broker to deliver to the Company
sufficient cash to pay the exercise price and any applicable income and employment withholding
taxes, in accordance with a written agreement between the Company and the brokerage firm; or (c)
any other method permitted in Section 2.4 of the Plan. Shares of Common Stock surrendered upon
exercise shall be valued at the Stock Exchange closing price for the Common Stock on the day prior
to exercise.
4.4.
Conditions to Issuance of Stock Certificates
. The Company shall not be required
to issue or deliver any certificate or certificates for shares of stock purchased upon the exercise
of an Option or portion thereof prior to fulfillment of all of the following conditions:
3
(a) The obtaining of approval or other clearance from any state or federal governmental agency
or stock exchange which the Committee shall, in its reasonable and good faith discretion, determine
to be necessary or advisable; and
(b) The receipt by the Company of such assurance of compliance with federal and state
securities laws as it may deem necessary or advisable.
4.5.
Rights as Stockholder
. The holder of the Option shall not be, nor have any of
the rights or privileges of, a stockholder of the Company in respect of any shares purchasable upon
the exercise of the Option or any portion thereof unless and until a certificate or certificates
representing such shares shall have been issued by the Company to such holder or a book entry
representing such shares has been made and such shares have been deposited with the appropriate
registered book-entry custodian. The Company shall not be liable to the Optionee for damages
relating to any delay in issuing shares or a stock certificate to Optionee, any loss of a
certificate, or any mistakes or errors in the issuance of shares or a certificate to Optionee.
4.6.
Withholding
. The Company shall have the right to withhold from Optionee’s
compensation or to require Optionee to remit sufficient funds to satisfy applicable withholding for
income and employment taxes upon the exercise of an Option. Subject to the limitations in Section
10.5 of the Plan, Optionee may, in order to fulfill the withholding obligation, make payment to the
Company in any manner permitted under Section 10.5 of the Plan. The Company shall not withhold
from the exercise of an Option more shares than are necessary to meet the established tax
withholding requirements of federal, state and local obligations. The Company shall be authorized
to take such action as may be necessary, in the opinion of the Company’s counsel (including,
without limitation, withholding vested Common Stock otherwise deliverable to the Optionee and/or
withholding amounts from any compensation or other amount owing from the Company to the Optionee),
to satisfy the obligations for payment of the minimum amount of any such taxes.
ARTICLE V
MISCELLANEOUS
5.1.
Option Not Transferable
. Neither the Option nor any interest or right therein or
part thereof shall be liable for the debts, contracts or engagements of the Optionee or his
successors in interest or shall be subject to disposition by transfer, alienation, anticipation,
pledge, encumbrance, assignment or any other means whether such disposition be voluntary or
involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or
equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null
and void and of no effect; provided, however, that this Section 5.1 shall not prevent transfers by
will or by the applicable laws of descent and distribution, or transfers to which the Committee has
given prior written consent subject to the conditions set forth in Section 10.3(a) of the Plan.
5.2.
Notices
. Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be given to the
Optionee shall be addressed to him or her at the address stated in the Company’s employee records.
By a notice given pursuant to this Section 5.2, either party may hereafter designate a different
address for notices to be given to the party. Any notice, which is required to be given to
4
the Optionee, shall, if the Optionee is then deceased, be given to the Optionee’s personal
representative if such representative has previously informed the Company of his status and address
by written notice under this Section 5.2. Any notice shall have been deemed duly given when
enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with postage
prepaid) in a post office or branch post office regularly maintained by the United States Postal
Service or when delivered personally to the Secretary or Optionee.
5.3.
Amendment
. Subject to Sections 2.1 and 3.3 of this Agreement and the terms of
the Plan, this Agreement may be amended only by a writing executed by the parties hereto if such
amendment would adversely affect Optionee. Any such amendment shall specifically state that it is
amending this Agreement.
5.4.
Governing Law
. The laws of the State of Michigan shall govern the
interpretation, validity and performance of the terms of this Agreement regardless of the law that
might be applied under principles of conflicts of laws.
5.5.
No Guarantee of Employment
. Nothing in this Agreement or in the Plan shall
confer upon the Optionee any right to continue in the employ of the Company or any Subsidiary or
shall interfere with or restrict in any way the rights of the Company and its Subsidiaries, which
are hereby expressly reserved, to terminate the employment of the Optionee at any time for any
reason whatsoever, with or without cause, subject to the applicable provisions of, if any, the
Optionee’s employment agreement with the Company.
5.6
Plan Terms Control
. In the event of any conflict between the Plan and this
Agreement, the terms of the Plan shall control, it being understood that variations in this
Agreement from terms set forth in the Plan shall not be considered to be in conflict if the Plan
permits such variations.
[Signatures on next page.]
5
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Grant Date.
|
|
|
|
|
|
|
|
|
|
|
ROCKWELL MEDICAL TECHNOLOGIES, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OPTIONEE:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Name]
|
|
|
6