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EXHIBIT 4.4
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▇▇▇▇▇▇▇ CONTROLS, INC.
STANDARD [COMMON/PREFERRED] STOCK WARRANT
AGREEMENT PROVISIONS
-----------------,1996
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From time to time, ▇▇▇▇▇▇▇ Controls, Inc., a Wisconsin corporation (the
"Company"), may enter into one or more warrant agreements that provide for the
issuance and sale of warrants ("Warrants") to purchase shares of the Company's
[common stock, $.16 2/3 par value (the "Common Stock")/specify preferred stock,
$1.00 par value (the "Preferred Stock")] (such shares are hereinafter referred
to as the "Shares" and, where appropriate, such term shall also mean the other
securities or property purchasable upon the exercise of the Warrants upon the
happening of certain events as provided for herein, and such [Common/Preferred]
Stock is hereinafter referred to as the "Stock"). The standard provisions set
forth herein may be included or incorporated by reference in any such warrant
agreement (a "Warrant Agreement"). The Warrant Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
"Agreement." The person named as the "Warrant Agent" in the first paragraph of
the Warrant Agreement is herein referred to as the "Warrant Agent." Unless
otherwise defined in this Agreement or in the Warrant Agreement, as the case
may be, terms defined in the Warrant Agreement are used herein as therein
defined and terms defined herein are used in the Warrant Agreement as herein
defined.
SECTION 1. Number of Warrants Unlimited; Issuable from Time to Time. The
number of Warrants which may be issued and delivered under this Agreement is
unlimited.
There shall be established in or pursuant to a resolution of the Board of
Directors of the Company or established in one or more warrant agreements
supplemental hereto, prior to the issuance of any Warrants:
(a) the offering price,
(b) the designation and terms of such Warrants and the Stock purchasable
upon exercise of such Warrants,
(c) the date on which the right to exercise such Warrants shall commence,
(d) if the Warrants are issued together as a unit with any other securities
of the Company, the date after which the Warrants shall be freely
tradeable separately from such other securities (the "Distribution
Date") and if the Company may at its option or under circumstances
described therein provide for an earlier Distribution Date,
(e) the Expiration Date pursuant to Section 6,
(f) the Exercise Price and any form of consideration other than lawful money
of the United States of America by
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which the Exercise Price may be paid pursuant to Section 6,
(g) the Call Price, Call Date and Call Terms pursuant to Section 7,
(h) the limitations, if any, upon the Reduced Exercise Price and the Reduced
Exercise Price Period pursuant to Section 8,
(i) the circumstances, if any, under which the Exercise Price and the number
of Shares purchasable upon the exercise of each Warrant and the number of
Warrants outstanding are subject to adjustment and the manner of making
any such adjustment.
SECTION 2. Form of Warrant Certificates. The certificates evidencing the
Warrants (the "Warrant Certificates") to be delivered pursuant to this
Agreement shall be in registered form only. The Warrant Certificates shall be
in substantially such form or forms as shall be established by the Company from
time to time pursuant to one or more resolutions of the Board of Directors of
the Company or in one or more warrant agreements supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange or
as may, consistently herewith, be determined by the officers executing such
Warrants, as evidenced by their execution of the Warrants.
SECTION 3. Execution of Warrant Certificates. Warrant Certificates shall be
signed on behalf of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, a Vice President or its Treasurer and
attested by its Secretary or Assistant Secretary, under its corporate seal.
Each such signature upon the Warrant Certificates may be in the form of a
facsimile signature of the current or any future Chairman of the Board, Chief
Executive Officer, President, Vice President, Treasurer, Secretary or Assistant
Secretary and may be imprinted or otherwise reproduced on the Warrant
Certificates and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been Chairman of the Board, Chief
Executive Officer, President, Vice President, Treasurer, Secretary or Assistant
Secretary, notwithstanding the fact that at the time the Warrant Certificates
shall be countersigned and delivered or disposed of such person shall have
ceased to hold such office. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates.
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If any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before the Warrant Certificates so
signed shall have been countersigned by the Warrant Agent or disposed of by the
Company, such Warrant Certificates nevertheless may be countersigned and
delivered or disposed of as though such person had not ceased to be such
officer of the Company; and any Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Agreement
any such person was not such officer.
SECTION 4. Registration and Countersignature. Warrant Certificates shall be
manually countersigned and dated the date of countersignature by the Warrant
Agent and shall not be valid for any purpose unless so countersigned. The
Warrants shall be numbered and shall be registered in a register (the "Warrant
Register") to be maintained by the Warrant Agent.
The Company and the Warrant Agent may deem and treat the registered holder of
a Warrant Certificate as the absolute owner thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone), for the purpose
of any exercise thereof or any distribution to the holder thereof and for all
other purposes, and neither the Company nor the Warrant Agent shall be affected
by any notice to the contrary.
SECTION 5. Registration of Transfers and Exchanges. The Warrant Agent shall
from time to time register the transfer of any outstanding Warrant Certificates
in the Warrant Register, upon surrender of such Warrant Certificates, duly
endorsed, and accompanied by a written instrument or instruments of transfer in
form satisfactory to the Warrant Agent, duly signed by the registered holder or
holders thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney, such signature to be guaranteed by (a) a bank or
trust company, (b) a broker or dealer that is a member of the National
Association of Securities Dealers, Inc. (the "NASD") or (c) a member of a
national securities exchange. Upon any such registration of transfer, a new
Warrant Certificate shall be issued to the transferee.
Warrant Certificates may be exchanged at the option of the holder or holders
thereof, when surrendered to the Warrant Agent at its offices or agency
maintained for the purpose of exchanging, transferring and exercising the
Warrants (a "Warrant Agent Office") or at the offices of any successor Warrant
Agent as provided in Section 19 hereof, for another Warrant Certificate or
other Warrant Certificates of like tenor representing in the aggregate a like
number of Warrants.
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The Warrant Agent is hereby authorized to countersign, in accordance with the
provisions of this Section 5 and of Section 4, and deliver the new Warrant
Certificates required pursuant to the provisions of this Section, and for the
purpose of any distribution of Warrant Certificates contemplated by Section 14.
No service charge shall be made for any exchange or registration of transfer
of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in connection with any such exchange or registration of
transfer. Whenever any Warrant Certificates are surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall
mutually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect
any exchange or registration of transfer that will result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange or registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations and entitled to the
same benefits under this Agreement as the Warrant Certificates surrendered for
such exchange or registration of transfer.
SECTION 6. Duration and Exercise of Warrants.
(a) The Warrants shall expire on (a) the close of business on the date set
forth pursuant to Section 1, or (b) such later date as shall be determined in
the sole discretion of the Company, in a written statement to the Warrant Agent
and with notice to registered holders of Warrants in the manner provided for in
Section 16 (such date of expiration being herein referred to as the "Expiration
Date"). On and after the Distribution Date, each Warrant may be exercised on
any business day on or prior to the close of business on the Expiration Date.
After the close of business on the Expiration Date, the Warrants will become
void and of no value.
(b) Subject to the provisions of this Agreement, including Section 14, the
holder of each Warrant shall have the right to purchase from the Company (and
the Company shall issue and sell to such holder of a Warrant) one fully paid
and nonassessable Share (except as provided by Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law (the "WBCL") regarding personal liability of
shareholders for all debts owing to employees of the Company for services
performed but not exceeding six months' service in any one case) at the price
set forth pursuant to Section 1 (such price, as may be adjusted from time to
time as provided in Section 14, being the "Exercise Price") upon depositing
with the Warrant Agent at a
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Warrant Agent Office the Warrant Certificate evidencing such Warrant, with the
form of election to purchase on the reverse thereof duly completed and signed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be
guaranteed by a bank or trust company, by a broker or dealer which is a member
of NASD or by a member of a national securities exchange, and upon payment of
the Exercise Price for the number of Shares in respect of which such Warrant is
being exercised. Unless otherwise provided pursuant to Section 1, payment of
the aggregate Exercise Price shall be made in lawful money of the United States
of America. If the Warrant Agent receives moneys in payment of the purchase
price for Warrants, the Warrant Agent shall deposit all funds received by it in
the account of the Company maintained with it for such purpose. If the Warrant
Agent receives consideration other than moneys for Warrants, the Warrant Agent
shall deliver such consideration directly to the Company. In either case, the
Warrant Agent shall advise the Company by telex or telecopy at the end of each
day as to the Warrant Certificates that have been exercised and the amount of
moneys deposited to its account or the type and amount of other consideration
to be delivered to it.
(c) The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company of (i) the number of Warrants exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Shares to which such holder is
entitled upon such exercise, (iii) delivery of Warrant Certificates evidencing
the balance, if any, of the Warrants remaining after such exercise and (iv)
such other information as the Company shall reasonably require.
(d) Subject to Section 10, upon such surrender of a Warrant Certificate and
payment of the Exercise Price, the Warrant Agent shall requisition from the
Company's Stock transfer agent (the "Transfer Agent") for issuance and delivery
to or upon the written order of the registered holder of such Warrant
Certificate and in such name or names as such registered holder may designate,
a certificate or certificates for the Share or Shares issuable upon the
exercise of the Warrant or Warrants evidenced by such Warrant Certificate(s).
Such certificate or certificates shall be deemed to have been issued and any
person so designated to be named therein shall be deemed to have become the
holder of record of such Share or Shares as of the date of the surrender of
such Warrant Certificate duly executed and payment of the Exercise Price. The
Warrants evidenced by a Warrant Certificate shall be exercisable, at the
election of the registered holder thereof, either as an entirety or from time
to time for a portion of the number of Warrants specified in the Warrant
Certificate. If less than all of the Warrants evidenced by a Warrant
Certificate surrendered upon the exercise of Warrants are exercised at any time
prior to the date of expiration for the Warrants, a new Warrant Certificate or
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Certificates shall be issued for the remaining number of Warrants evidenced by
the Warrant Certificate so surrendered, and the Warrant Agent is hereby
authorized to countersign the required new Warrant Certificate or Certificates
pursuant to the provisions of Section 5 and this Section 6.
SECTION 7. Call of Warrants by the Company. If so provided in the Warrant
Agreement, the Company shall have the right to call and repurchase any or all
Warrants at the price (the "Call Price") and on or after the date (the "Call
Date") and upon the terms (the "Call Terms") as shall be set forth pursuant to
Section 1. Notice of such Call Price, Call Date and Call Terms shall be given
to registered holders of Warrants in the manner provided in Section 16.
SECTION 8. Optional Reduction of Exercise Price. Subject to the limits, if
any, set forth pursuant to Section 1, the Company shall have the right, at any
time or from time to time, voluntarily to reduce the then current Exercise
Price to such amount (the "Reduced Exercise Price") and for such period or
periods of time, which may be through the close of business on the Expiration
Date (the "Reduced Exercise Price Period") as may be deemed appropriate by the
Company. Notice of any such Reduced Exercise Price and Reduced Exercise Price
Period shall be given to registered holders of Warrants in the manner provided
in Section 16. After the termination of the Reduced Exercise Price Period, the
Exercise Price shall be such Exercise Price that would have been in effect, as
adjusted pursuant to the provisions of Section 14, had there been no reduction
in the Exercise Price pursuant to the provisions of this Section 8. No
reduction of the then current Exercise Price pursuant to the provisions of this
Section 8 shall be deemed for the purposes of Section 14 hereof to alter or
adjust the Exercise Price.
SECTION 9. Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exercise, registration of transfer or exchange shall, if
surrendered to the Company, be delivered to the Warrant Agent, and all Warrant
Certificates surrendered or so delivered to the Warrant Agent shall be promptly
canceled by the Warrant Agent and shall not be reissued and, except as
expressly permitted by this Agreement, no Warrant Certificate shall be issued
hereunder in lieu thereof. The Warrant Agent shall deliver to the Company from
time to time, or otherwise dispose of, canceled Warrant Certificates in a
manner satisfactory to the Company.
SECTION 10. Payment of Taxes. The Company will pay all documentary stamp
taxes attributable to the initial issuance of Warrants and of Shares upon the
exercise of Warrants; provided, however, that the Company shall not be required
to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue of any Warrant Certificates or any certificates for
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Shares in a name other than the registered holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and the Company shall not be
required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
SECTION 11. Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon
receipt by the Company and the Warrant Agent of evidence reasonably
satisfactory to them of the ownership and the loss, theft, destruction or
mutilation of the Warrant Certificate, and of indemnity reasonably satisfactory
to them, and, in the case of mutilation, upon surrender thereof to the Warrant
Agent for cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the
lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and for a like number of Warrants. Upon the
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expense (including
the fees and expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant to this Section
in lieu of any lost, stolen or destroyed Warrant Certificate shall constitute
an additional contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) any and all other rights or remedies with
respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
SECTION 12. Reservation of Shares. For the purpose of enabling it to satisfy
any obligation to issue Shares upon exercise of Warrants, the Company will at
all times through the close of business on the Expiration Date, reserve and
keep available, free from preemptive rights and out of its aggregate authorized
but unissued or treasury shares of Stock, the number of Shares deliverable upon
the exercise of all outstanding Warrants, and the Transfer Agent for such Stock
is hereby irrevocably authorized and directed at all times to reserve such
number of authorized and unissued or treasury shares of Stock as shall be
required for such purpose. The Company will keep a copy of this Agreement on
file with such Transfer Agent and with every transfer agent for any shares of
the Company's capital stock issuable upon the exercise of
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Warrants pursuant to Section 14. The Warrant Agent is hereby irrevocably
authorized to requisition from time to time from such Transfer Agent Stock
certificates issuable upon exercise of outstanding Warrants, and the Company
will supply such Transfer Agent with duly executed Stock certificates for such
purpose.
Before taking any action that would cause an adjustment pursuant to Section
14 reducing the Exercise Price below the then par value (if any) of the Shares
issuable upon exercise of the Warrants, the Company will take any corporate
action that may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable Shares
(except as provided by Section 180.0622(2)(b) of the WBCL regarding personal
liability of shareholders for all debts owing to employees of the Company for
services performed but not exceeding six months' service in any one case) at
the Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of the Warrants,
will, upon issuance in accordance with the terms of this Agreement, be fully
paid and nonassessable and free from all taxes, liens, charges and security
interests created by or imposed upon the Company with respect to the issuance
and holding thereof, except as provided by Section 180.0622(2)(b) of the WBCL
regarding personal liability of shareholders for all debts owing to employees
of the Company for services performed but not exceeding six months' service in
any one case.
SECTION 13. Obtaining of Governmental Approvals and Stock Exchange Listings.
The Company will from time to time take all action that may be necessary (a) to
obtain and keep effective any and all permits, consents and approvals of
governmental agencies and authorities and to make filings under federal and
state securities acts and laws, which may be or become requisite in connection
with the issuance, sale, transfer and delivery of the Warrant Certificates, the
exercise of the Warrants and the issuance, sale, transfer and delivery of the
Shares issued upon exercise of Warrants, and (b) to have the shares of Stock,
immediately upon their issuance upon exercise of Warrants, (i) listed on each
national securities exchange on which the Stock is then listed or (ii) if the
Stock is not then listed on any national securities exchange, listed for
quotation on the NASD Automated Quotations System ("NASDAQ") National Market
System ("NASDAQ/NMS") or such other over-the-counter quotation system on which
the Stock may then be listed.
SECTION 14. Adjustment of Exercise Price and Number of Shares Purchasable or
Number of Warrants. Except as may be otherwise provided in accordance with
Section 1, the Exercise Price, the number of Shares purchasable upon the
exercise of each Warrant and the number of Warrants outstanding are subject to
adjustment from
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time to time upon the occurrence of the events enumerated in this Section 14.
(a) If the Company shall (i) pay a dividend on its capital stock (including
Stock) in shares of Stock, (ii) subdivide its outstanding shares of Stock,
(iii) combine its outstanding shares of Stock into a smaller number of shares
of Stock or (iv) issue any shares of its capital stock in a reclassification of
the Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation),
the number of Shares purchasable upon exercise of each Warrant immediately
prior thereto shall be adjusted so that the holder of each Warrant shall be
entitled to receive the kind and number of Shares or other securities of the
Company which such holder would have owned or have been entitled to receive
after the happening of any of the events described above, had such Warrant been
exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this paragraph (a) shall
become effective immediately after the effective date of such event retroactive
to the record date, if any, for such event.
(b) In the event of any capital reorganization or any reclassification of
the Stock (except as provided in paragraph (a) above or paragraph (h) below),
any holder of Warrants upon exercise thereof shall be entitled to receive, in
lieu of the Stock to which he would have become entitled upon exercise
immediately prior to such reorganization or reclassification, the shares (of
any class or classes) or other securities or property of the Company that he
would have been entitled to receive at the same aggregate Exercise Price upon
such reorganization or reclassification if his Warrants had been exercised
immediately prior thereto; and in any such case, appropriate provision (as
determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive and shall be evidenced by a resolution filed
with the Warrant Agent) shall be made for the application of this Section 14
with respect to the rights and interests thereafter of the holders of Warrants
(including the allocation of the adjusted Exercise Price between or among
shares of classes of capital stock), to the end that this Section 14 (including
the adjustments of the number of shares of Stock or other securities
purchasable and the Exercise Price thereof) shall thereafter be reflected, as
nearly as reasonably practicable, in all subsequent exercises of the Warrants
for any shares or securities or other property thereafter deliverable upon the
exercise of the Warrants.
(c) Except for adjustments required by paragraph (h) hereof, no adjustment
in the number of Shares purchasable hereunder shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%)
in the number of Shares purchasable upon the exercise of each Warrant;
provided, however,
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that any adjustments which by reason of this paragraph (c) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations shall be made to the nearest cent and to the
nearest one-hundredth of a Share, as the case may be.
(d) Whenever the number of Shares purchasable upon the exercise of each
Warrant is adjusted as herein provided (whether or not the Company then or
thereafter elects to issue additional Warrants in substitution for an
adjustment in the number of Shares as provided in paragraph (f)), the Exercise
Price payable upon exercise of each Warrant shall be adjusted by multiplying
such Exercise Price immediately prior to such adjustments by a fraction, of
which the numerator shall be the number of Shares purchasable upon the exercise
of each Warrant immediately prior to such adjustment, and the denominator shall
be the number of Shares so purchasable immediately thereafter.
(e) For the purpose of this Section 14, the term "shares of stock" shall
mean (i) the class of stock designated as the [Common/specify preferred stock]
Stock of the Company at the date of this Agreement, or (ii) any other class of
stock resulting from successive changes or reclassification of such shares
consisting solely of changes in par value, of from par value to no par value,
or from no par value to par value. If at any time, as a result of an
adjustment made pursuant to paragraph (a) or (b) above, the holders of Warrants
shall become entitled to purchase any shares of the Company other than shares
of Stock, thereafter the number of shares so purchasable upon exercise of each
Warrant and the Exercise Price of such shares shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Shares contained in paragraph (a) through
(d), inclusive, above, and the provisions of Sections 5, 10, 12, 13(a) and 16,
with respect to the Shares, shall apply on like terms to any such other shares.
(f) The Company may elect, on or after the date of any adjustment required
by paragraphs (a) or (b) of this Section 14, to adjust the number of Warrants
in substitution for an adjustment in the number of Shares purchasable upon the
exercise of a Warrant. Each of the Warrants outstanding after such adjustment
of the number of Warrants shall be exercisable for the same number of Shares as
immediately prior to such adjustment. Each Warrant held of record prior to
such adjustment of the number of Warrants shall become that number of Warrants
(calculated to the nearest hundredth) obtained by dividing the Exercise Price
in effect prior to adjustment of the Exercise Price by the Exercise Price in
effect after the adjustment of the Exercise Price. The Company shall notify
the holders of Warrants in the same manner as provided in the first paragraph
of Section 16, of its election to adjust the number of Warrants, indicating the
record date for the adjustment,
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and, if known at the time, the amount of the adjustment to be made. This
record date may be the date on which the Exercise Price is adjusted or any day
thereafter. Upon each adjustment of the number of Warrants pursuant to this
paragraph (f) the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Warrants on such record date Warrant
Certificates evidencing, subject to Section 15, the additional Warrants to
which such holders shall be entitled as a result of such adjustment, or, at the
option of the Company, shall cause to be distributed to such holders of record
in substitution and replacement for the Warrant Certificates held by such
holders prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Warrant Certificates evidencing all the Warrants
to be issued, executed and registered in the manner specified in Sections 4 and
5 (and which may bear, at the option of the Company, the adjusted Exercise
Price) and shall be registered in the names of the holders of record of Warrant
Certificates on the record date specified in the notice.
(g) Except as provided in paragraph (a) of this Section 14, no adjustment in
respect of any dividends shall be made during the term of a Warrant or upon the
exercise of a Warrant.
(h) In case of any consolidation of the Company with or merger of the
Company into another corporation or in case of any sale or conveyance to
another corporation of the property of the Company as an entirety or
substantially as an entirety, the Company or such successor or purchasing
corporation, as the case may be, shall execute with the Warrant Agent an
agreement that each holder of a Warrant shall have the right thereafter upon
payment of the Exercise Price in effect immediately prior to such action to
purchase upon exercise of each Warrant the kind and amount of shares and other
securities and property which he would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale or conveyance
had such Warrant been exercised immediately prior to such action. The Company
shall mail by first class mail, postage prepaid, to each holder of a Warrant,
notice of the execution of any such agreement. Such agreement shall provide
for adjustments, which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section 14. The provisions of this
paragraph (h) shall similarly apply to successive consolidations, mergers,
sales or conveyances. The Warrant Agent shall be under no duty or
responsibility to determine the correctness of any provisions contained in any
provisions contained in any such agreement relating either to the kind or
amount of shares of stock or other securities or property receivable upon
exercise of Warrants or with respect to the method employed and provided
therein for any adjustments and shall be entitled to rely upon the provisions
contained in any such agreement.
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(i) Irrespective of any adjustments in the Exercise Price or the number or
kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
SECTION 15. Fractional Warrants and Fractional Shares.
(a) The Company shall not be required to issue fractions of Warrants on any
distribution of Warrants to holders of Warrant Certificates pursuant to Section
14(f) or to distribute Warrant Certificates that evidence fractional Warrants.
In lieu of such fractional Warrants there shall be paid to the registered
holders of the Warrant Certificates with regard to which such fractional
Warrants would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a full Warrant. For purposes of this
Section 15(a), the current market value of a Warrant shall be the closing price
of one Warrant (as determined pursuant to paragraph (c) below) for the trading
day immediately prior to the date on which such fractional Warrant would have
been otherwise issuable.
(b) Notwithstanding any adjustment pursuant to Section 14 in the number of
Shares purchasable upon the exercise of Warrant, the Company shall not be
required to issue fractions of Shares upon exercise of the Warrants or to
distribute certificates which evidence fractional Shares. In lieu of
fractional Shares, there shall be paid to the registered holders of Warrant
Certificates at the time such Warrant Certificates are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of a share of Stock. For purposes of this Section 15(b), the current
market value of a share of Stock shall be the closing price of a share of Stock
(as determined pursuant to paragraph (c) below) for the trading day immediately
prior to the date of such exercise.
(c) The closing price for each day shall be the last sale price, regular
way, or, if no such sale takes place on such day, the average of the closing
bid and asked prices, regular way, for such day, in either case as reported in
the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange or, if
the Warrants or Stock, as the case may be, is not listed or admitted to trading
on such exchange, as reported on the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Warrants or Stock, respectively, is listed or
admitted to trading, or if the Warrants or Stock, as the case may be, is not
listed or admitted to trading on any national securities exchange, as reported
on NASDAQ/NMS or, if the Warrants or Stock, as the case may be, is not listed
or admitted to trading on NASDAQ/NMS, as reported on NASDAQ.
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SECTION 16. Notices to Warrantholders. Upon any adjustment of the number of
Shares purchasable upon exercise of each Warrant, the Exercise Price or the
number of Warrants outstanding pursuant to Section 14, the Company within 20
calendar days thereafter shall (i) cause to be filed with the Warrant Agent a
certificate of a firm of independent public accountants of recognized standing
selected by the Company (who may be the regular auditors of the Company)
setting forth the Exercise Price and either the number of Shares purchasable
upon exercise of each Warrant or the additional number of Warrants to be issued
for each previously outstanding Warrant, as the case may be, after such
adjustment and setting forth in reasonable detail the method of calculation and
the facts upon which such adjustment was made, which certificate shall be
conclusive evidence of the correctness of the matters set forth therein, and
(ii) cause to be given to each of the registered holders of the Warrant
Certificates at such holder's address appearing on the Warrant Register written
notice of such adjustments by first class mail, postage prepaid. Where
appropriate, such notice may be given in advance and included as a part of the
notice required to be mailed under the other provisions of this Section 16.
Pursuant to Sections 1, 6, 7 and 8, the Company shall cause written notice of
such later Distribution Date, such later Expiration Date, such Call Price, Call
Date and Call Terms and such Reduced Exercise Price and Reduced Exercise Price
Period, as the case may be, to be given as soon as practicable to the Warrant
Agent and to each of the registered holders of the Warrant Certificates by
first class mail, postage prepaid, at such holder's address appearing on the
Warrant Register. In addition to the written notice referred to in the
preceding sentence, the Company shall make a public announcement in a daily
morning newspaper of general circulation in New York City and in Chicago of
such earlier Distribution Date, such later Expiration Date, such Call Price,
Call Date and Call Terms and such Reduced Exercise Price and Reduced Exercise
Price Period, as the case may be, at least once a week for two successive weeks
prior to the implementation of such terms.
If:
(a) the Company shall declare any dividend payable in any securities upon
its shares of Stock or make any distribution (other than a cash dividend) to
the holders of its shares of Stock, or
(b) the Company shall offer to the holders of its shares of Stock any
additional shares of Stock or securities convertible into shares of Stock or
any right to subscribe thereto, or
(c) there shall be a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation,
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merger or sale of all or substantially all of its property, assets and business
as an entirety),
then the Company shall (i) cause written notice of such event to be filed with
the Warrant Agent and shall cause written notice of such event to be given to
each of the registered holders of the Warrant Certificates at such holder's
address appearing on the Warrant Register, by first class mail, postage
prepaid, and (ii) make a public announcement in a daily newspaper of general
circulation in New York City and in Chicago of such event, such giving of
notice and publication to be completed at least 10 calendar days (or 20
calendar days in any case specified in clause (c) above) prior to the date
fixed as a record date or the date of closing the transfer books for the
determination of the stockholders entitled to such dividend, distribution or
subscription rights, or for the determination of stockholders entitled to vote
on such proposed dissolution, liquidation or winding up. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be. The failure to give the notice required by this Section 16 or any
defect therein shall not affect the legality or validity of any distribution,
right, warrant, dissolution, liquidation or winding up or the vote upon or any
other action taken in connection therewith.
SECTION 17. Warrant Agent. The Company hereby appoints the Warrant Agent as
the Warrant Agent of the Company in respect of the Warrant Certificates upon
the terms and subject to the conditions herein set forth, and the Warrant Agent
hereby accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Warrant Certificates and by
this Agreement, and such further powers and authority to act on behalf of the
Company as the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such powers and authority contained in the
Warrant Certificates are subject to and governed by the terms and provisions
hereof.
SECTION 18. Conditions of Warrant Agent's Obligations. The Warrant Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders of
Warrants, by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant Certificates shall be
taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it. Except as herein
otherwise provided, the Warrant Agent assumes no responsibility with respect to
the execution, delivery or distribution of the Warrant Certificates.
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(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company nor shall it at any
time be under any duty or responsibility to any holder of a Warrant to make or
cause to be made any adjustment in the Exercise Price or in the number of
Shares issuable upon exercise of any Warrant (except as instructed by the
Company), or to determine whether any facts exist which may require any such
adjustments, or with respect to the nature or extent of or method employed in
making any such adjustments when made.
(c) The Warrant Agent may consult at any time with counsel satisfactory to
it (who may be counsel for the Company) and the Warrant Agent shall incur no
liability or responsibility to the Company or any holder of any Warrant
Certificate in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant Certificate for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate or
other paper, document or instrument believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable compensation
for all services rendered by the Warrant Agent under this Agreement, to
reimburse the Warrant Agent upon demand for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the performance of its duties under this Agreement and to
indemnify the Warrant Agent and save it harmless against any and all losses,
liabilities and expenses, including judgments, costs and reasonable counsel
fees, for anything done or omitted by the Warrant Agent arising out of or in
connection with this Agreement except as a result of its negligence or bad
faith.
(f) The Warrant Agent shall be under no obligation to institute any action,
suit or legal proceeding or to take any other action likely to involve expense
unless the Company or one or more registered holders of Warrant Certificates
shall furnish the Warrant Agent with reasonable security and indemnity for any
costs or expenses which may be incurred. All rights of action under this
Agreement or under any of the Warrants may be enforced by the Warrant Agent
without the possession of any of the Warrant Certificates or the production
thereof at any trial or other proceeding relative thereto, and any such action,
suit or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent, and any recovery or judgment shall be for
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the ratable benefit of the registered holders of the Warrants, as their
respective rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer or employee
thereof, may buy, sell or deal in any of the Warrants or other securities of
the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though they were not the Warrant Agent
under this Agreement, or a stockholder, director, officer or employee of the
Warrant Agent, as the case may be. Nothing herein shall preclude the Warrant
Agent from acting in any other capacity for the Company or for any other legal
entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company,
and its duties shall be determined solely by the provisions hereof. The
Warrant Agent shall not be liable for anything which it may or do or refrain
from doing in connection with this Agreement except for its own negligence or
bad faith.
(i) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be
required by the Warrant Agent for the carrying out or performing of the
provisions of this Agreement.
(j) The Warrant Agent shall not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except the
due execution hereof by the Warrant Agent) or in respect of the validity or
execution of any Warrant Certificate (except its countersignature thereof), nor
shall the Warrant Agent by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of the Shares
to be issued pursuant to this Agreement or any Warrant Certificate or as to
whether the Shares will when issued be validly issued, fully paid and
nonassessable or as to the Exercise Price or the number of Shares issuable upon
exercise of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Treasurer, the Secretary or any Assistant Secretary of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any such officer
or in good faith reliance upon any statement signed by any one of such officers
of the Company with respect to any fact or matter (unless other evidence in
respect thereof is herein
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specifically prescribed) which may be deemed to be conclusively proved and
established by such signed statement.
SECTION 19. Resignation and Appointment of Successor Warrant Agent.
(a) The Company agrees, for the benefit of the holders from time to time of
the Warrant Certificates, that at all times there shall be a Warrant Agent
hereunder until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving written
notice to the Company of such intention on its part, specifying the date on
which its desired resignation shall become effective; provided that such date
shall not be less than 60 days after the date on which such notice is given
unless the Company agrees to accept less notice. The Warrant Agent may be
removed at any time by the filing with it of an instrument in writing signed by
or on behalf of the Company and specifying such removal and the date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company organized and doing business
under the laws of the United States of America or of any State, in good
standing, and authorized under such laws to exercise corporate trust powers)
and the acceptance of such appointment by such successor Warrant Agent. Upon
its resignation or removal, the Warrant Agent shall be entitled to the payment
by the Company of the compensation agreed to under Section 18(e) hereof for,
and to the reimbursement of all reasonable out-of-pocket expenses incurred in
connection with, the services rendered hereunder by the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall be removed, or
shall become incapable of acting, or shall be adjudged bankrupt or insolvent,
or shall file a petition seeking relief under the Federal Bankruptcy Code, as
now constituted or hereafter amended, or under any other applicable federal or
state bankruptcy law or similar law or make an assignment for the benefit of
its creditors or consent to the appointment of a receiver or custodian of all
or any substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or if a receiver or
custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the Federal Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy or similar law or if any
public officer shall have taken charge or control of the Warrant Agent or of
its property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified in accordance with the terms
of this Agreement, shall be appointed by the Company by an instrument in
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writing, filed with the successor Warrant Agent. Upon the appointment of a
successor Warrant Agent and acceptance by the latter of such appointment, the
Warrant Agent so superseded shall cease to be the Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive, all
moneys, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant Agent shall sell or otherwise transfer all or substantially all the
assets and business of the Warrant Agent, provided that it shall be qualified
as aforesaid, shall be the successor Warrant Agent under this Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
SECTION 20. Warrantholder Not Deemed a Stockholder. Nothing contained in
this Agreement or in any of the Warrant Certificates shall be construed as
conferring upon the holders thereof the right to vote or to receive dividends
or to consent or to receive notice as stockholders in respect of the meetings
of stockholders or for the election of directors of the Company or any other
matter, or any rights whatsoever as stockholders of the Company.
SECTION 21. Delivery of Prospectus. If the Company is required under
applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver
to such holder, prior to or concurrently with the delivery of the certificate
or certificates for the Shares issued upon such exercise, a copy of the
prospectus.
SECTION 22. Notices to Company and Warrant Agent. Any notice or demand
authorized by this Agreement to be given or made by the Warrant Agent or by any
registered holder of any Warrant
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Certificate to or on the Company shall be sufficiently given or made if sent by
mail, first class or registered, postage prepaid, addressed (until another
address is filed in writing by the Company with the Warrant Agent), as follows:
▇▇▇▇▇▇▇ Controls, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
If the Company shall fail to maintain such office or agency or shall fail to
give such notice of any change in the location thereof, presentation may be
made and notices and demands may be served at the principal office of the
Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by any
registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by mail, first class or registered, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) to the Warrant Agent at the address set forth in the Warrant
Agreement.
SECTION 23. Supplements and Amendments. The Company and the Warrant Agent
may from time to time supplement or amend this Agreement without the approval
of any holders of Warrant Certificates in order to designate Warrants pursuant
to Section 1, to cure any ambiguity, manifest error or other mistake in this
Agreement, or to correct or supplement any provision contained herein that may
be defective or inconsistent with any other provision herein, or to make any
other provisions in regard to matters or questions arising hereunder that the
Company and the Warrant Agent may deem necessary or desirable and that shall
not adversely affect, alter or change the interests of the holders of the
Warrant Certificates.
SECTION 24. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
SECTION 25. Termination. This Agreement shall terminate at the close of
business on the Expiration Date. Notwithstanding the foregoing, this Agreement
will terminate on any earlier date when all Warrants have been exercised. The
provisions of Section 18 shall survive such termination.
SECTION 26. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company, the
Warrant Agent and the registered holders of the Warrant Certificates any legal
or equitable right,
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remedy or claim under this Agreement, and this Agreement shall be for the sole
and exclusive benefit of the Company, the Warrant Agent and the registered
holders of the Warrant Certificates.
SECTION 27. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
SECTION 28. Headings. The headings of sections of this Agreement have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 29. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
SECTION 30. Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Wisconsin and for all purposes shall be construed in accordance with
the laws of such State.
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