THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. THIS WARRANT MAY NOT BE SOLD,
ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT OR LAWS.
COMMON STOCK PURCHASE WARRANT
To Subscribe for and Purchase Common Stock
of
XXXX COMPANY
WARRANT NO. 4
This certifies that, for value received, ROCK CREEK PARTNERS LTD., or its
transferee or assignee (the "Holder" which term includes any transferee and
assignee), is entitled to subscribe for and purchase from XXXX COMPANY, a
Wisconsin corporation (the "Company"), at the aggregate exercise price of
$560,000 (subject to the adjustment provided in Section 7 hereof) (or, if this
Common Stock Purchase Warrant is issued in substitution or exchange for a
predecessor common stock purchase warrant and represents rights to purchase
less than the maximum number or percentage of shares of Common Stock as
hereinafter defined which were purchasable upon exercise of such predecessor
common stock purchase warrant, a proportionately smaller amount) at any time
or times after the date hereof and until the date specified in Section 12
hereof, eighty thousand (80,000) shares of fully paid and nonassessable
(except as otherwise provided in Section 180.0622 of the Wisconsin Business
Corporation Law) shares of the Company's common stock, $0.10 par value per
share (the "Common Stock"), provided, however, that this Common Stock Purchase
Warrant shall be exercisable for a proportionately fewer or greater number of
shares of Common Stock if the Company combines by reverse stock split or
otherwise or subdivides by stock split, stock dividend or otherwise its
outstanding Common Stock. For the purposes of this Common Stock Purchase
Warrant, the term "Other Common Stock" shall mean other classes of equity
securities not limited to a fixed sum or percentage of a fixed sum in respect
of participation in dividends or distribution of assets in voluntary or
involuntary liquidation, dissolution or winding-up.
The predecessor to this Common Stock Purchase Warrant was originally
issued to the State of Wisconsin Investment Board (the "Board") pursuant to
the terms of the Second Amended and Restated Credit Agreement, dated as of
March 5, 1993 by and between the Company and the Board (the "Credit
Agreement"), in connection with the separate and individual purchases from the
Company by the Board of the Company's Senior Note, Junior Note and Make-Whole
Note (all as defined in the Credit Agreement) (together with any note or notes
issued in substitution or exchange therefor). This Common Stock Purchase
Warrant (and its predecessor) and all Common Stock Purchase Warrants issued in
substitution or exchange herefor are herein individually called a "Warrant"
and collectively called the "Warrants."
This Warrant is subject to the following provisions, terms and
conditions:
1. Exercise; Issuance of Certificates; Payment for Shares. The
rights represented by this Warrant may be exercised by the Holder, in whole or
in part and at one or more times by the surrender of this Warrant (properly
endorsed if required) at the principal office of the Company (or such other
office or agency of the Company as the Company may designate by written notice
to the Holder) and upon payment to the Company by wire transfer, certified
check or bank draft of the purchase price for the shares of Common Stock
purchasable hereunder and upon compliance with any registration requirements
or exemptions therefrom under the Securities Act (as defined below) and
applicable state securities laws. The Company agrees that the shares so
purchased shall and will be deemed to be issued to the Holder as the record
owner of such shares as of the close of business on the date on which this
Warrant shall have been surrendered and payment made for such shares as
aforesaid. Certificates for the shares of Common Stock so purchased shall be
delivered to the Holder within a reasonable time, not exceeding five (5) days,
after the rights represented by this Warrant shall have been so exercised,
and, unless this Warrant has expired, a new Warrant appropriately providing
for the purchase of Common Stock with respect to which this Warrant shall not
then have been exercised and stating the purchase price therefor shall also be
delivered to the Holder within such time.
2. Shares to be Fully Paid; Reservation of Shares. The Company
covenants and agrees that all shares which may be issued upon the exercise of
the rights represented by this Warrant and the payment of the purchase price
hereunder will, upon issuance, be fully paid and nonassessable (except as
otherwise provided by Section 180.0622 of the Wisconsin Business Corporation
Law) and free from all taxes, liens and charges with respect to the issue
thereof. Without limiting the generality of the foregoing, the Company
covenants and agrees that it will from time to time take all such action as
may be requisite to assure that the par value per share of the Common Stock is
at all times equal to or less than the then effective purchase price per share
of the Common Stock issuable upon exercise of this Warrant. The Company
further covenants and agrees that during the period within which the rights
represented by this Warrant may be exercised, the Company will at all times
have authorized, and reserved for the purpose of issue or transfer upon
exercise of the rights evidenced by this Warrant, a sufficient number of
shares of its Common Stock to provide for the exercise of the rights
represented by this Warrant. The Company will take all such action as may be
necessary to assure that such shares of Common Stock may be so issued without
violation of any applicable law or regulation (except for any such violation
that may be a result of the Holder's failure to register the shares of Common
Stock under the Securities Act as hereinafter defined and any applicable state
securities law), or of any requirements of any domestic securities exchange
upon which the Common Stock of the Company may be listed.
3. [Reserved]
4. Record Date. In case the Company shall fix a record date or
otherwise make a record of the holders of its Common Stock for the purpose of
entitling them to receive a dividend or other distribution payable in Common
Stock or Other Common Stock, then such record date shall be deemed to be the
date of the issue of the shares of Common Stock or Other Common Stock deemed
to have been issued upon the declaration of such dividend or the making of
such other distribution.
5. Reorganization, Reclassification, Consolidation, Merger or
Sale. Any capital reorganization, reclassification, consolidation, merger or
sale of all or substantially all of the Company's assets to another person,
entity, firm or partnership which is effected in such a way that holders of
Common Stock or Other Common Stock are entitled to receive (either directly or
upon subsequent liquidation) stock, securities or assets with respect to or in
exchange for Common Stock or Other Common Stock is referred to herein as an
"Organic Change." Prior to the consummation of any Organic Change, the
Company will make appropriate provision (in form and substance satisfactory to
the Holder) to insure that the Holder will thereafter have the right to
purchase and receive, in lieu of or in addition to the Common Stock
immediately theretofore purchasable and receivable upon the exercise of this
Warrant, such shares of stock, securities or assets as the Holder would have
received in connection with such Organic Change if the Holder had exercised
this Warrant. The Company will not effect any such reorganization,
reclassification, consolidation, merger or sale unless, prior to the
consummation thereof, the successor corporation (if other than the Company)
resulting from such Organic Change assumes by written instrument (in form
reasonably satisfactory to the Holder) the obligation to deliver to the Holder
such shares of stock, securities or assets as, in accordance with the
foregoing provisions, the Holder may be entitled to acquire.
6. Liquidating Dividends. If the Company declares or pays a
dividend (other than a stock dividend payable in shares of Common Stock) upon
the Common Stock payable otherwise than in cash out of earnings or earned
surplus, determined in accordance with generally accepted accounting
principles, consistently applied (a "Liquidating Dividend"), then the Company
shall provide written notice of such declaration or payment of the Liquidating
Dividend at least fifteen (15) days prior to the date proposed for the payment
thereof. Said notice shall specify (i) the proposed date of payment of the
Liquidating Dividend and the amount per share of Common Stock thereof. The
Company furthermore shall cooperate with the Holder to effect the exercise of
this Warrant should the Holder desire to so exercise in order to enable the
Holder to participate in the Liquidating Dividend.
7. Adjustment in Aggregate Exercise Price. If the Company while
this Warrant is outstanding shall issue and sell or otherwise distribute any
Common Stock or Other Common Stock (other than a distribution to the existing
holders of Common Stock or Other Common Stock) at a price per share which
would be less than the aggregate exercise price of this Warrant divided by the
number of shares of Common Stock issuable upon the exercise of this Warrant,
then, and thereafter successively upon each such issue, the aggregate exercise
price then if effect shall be reduced to the lowest price obtained by
multiplying such lowest price per share of Common Stock or Other Common Stock
times the number of shares of Common Stock then issuable upon exercise of this
Warrant; provided however that the adjustment in aggregate purchase price
provided in this Section 7 shall not apply unless and until the Company shall
issue and sell or otherwise distribute any Common Stock or Other Common Stock
in excess of six hundred twenty-five thousand (625,000) shares following
March 5, 1993.
(a) In the case of the issuance of additional Common
Stock or Other Common Stock for cash, in determining the price per share of
such issuance, the consideration received by the Company therefor shall be
deemed to be the cash proceeds received by the Company for such shares after
deducting any commissions or other expenses paid or incurred by the Company
for any underwriting of, or otherwise in connection with, the issuance of such
shares.
(b) In the case of the issuance (otherwise than upon
conversion or exchange of obligations or shares of stock of the Company) of
additional Common Stock or Other Common Stock for a consideration other than
cash or a consideration a part of which shall be other than cash, in
determining the price per share of such issuance, the amount of the
consideration other than cash received by the Company for such Common Stock or
Other Common Stock shall be deemed to be the value of such consideration as
determined reasonably and in good faith by the board of directors of the
Company.
(c) In case of the issuance by the Company after the date
hereof of (i) any security that is convertible into Common Stock or Other
Common Stock, (ii) any rights or options to purchase Common Stock or Other
Common Stock, the Company shall be deemed to have issued the maximum number of
shares of Common Stock or Other Common Stock into which such convertible
security may be converted, and the maximum number of shares of Common Stock or
Other Common Stock deliverable on the exercise of such rights or options, for
the consideration received by the Company for such convertible security or for
such rights or options (less the amount of any underwriting discount), as the
case may be, and after deducting therefrom any expenses or commissions
incurred or paid by the Company for any underwriting of, or otherwise in
connection with, the issuance of such convertible security or rights or
options, plus (A) any consideration or adjustment payment to be received by
the Company in connection with such conversion and (B) the minimum
consideration to be received by the Company for the Common Stock or Other
Common Stock issuable upon the exercise of such rights or options. No further
adjustment of the aggregate exercise price shall be made as a result of the
actual issuance of the Common Stock or Other Common Stock upon conversion of
any convertible security or exercise of any rights or options referred to in
this clause (c) or issued prior to the date hereof.
8. Closing of Books. The Company will at no time close its
transfer books against the transfer of this Warrant or of any shares of Common
Stock issued or issuable upon the exercise of this Warrant in any manner which
interferes with the timely exercise of this Warrant.
9. No Voting or Other Rights. This Warrant shall not entitle the
Holder to any voting rights or other rights as a stockholder of the Company.
10. Warrant Transferable. This Warrant and all rights and
obligations hereunder are transferable, in whole, without charge to the Holder
upon surrender of this Warrant with a properly executed assignment (in form
reasonably acceptable to the Company) at the principal office of the Company.
This Warrant is not transferable except pursuant to an effective registration
statement under the Securities Act (as defined below) or in a transaction
exempt from the registration requirements of the Securities Act and in
compliance with any applicable state securities laws.
11. Warrants Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Holder at the office
or agency of the Company referred to in Section 1 hereof, for new Warrants of
like tenor representing in the aggregate the right to subscribe for and
purchase the maximum number of shares of Common Stock which may be subscribed
for and purchased hereunder (subject to reduction to reflect any partial
exercise or exercises of this Warrant), each of such new Warrants to represent
the right to subscribe for and purchase the number of shares of Common Stock
purchasable upon exercise of this Warrant as shall be designated by the Holder
at the time of such surrender.
12. Duration. The rights to purchase shares of Common Stock
hereunder shall remain in existence until March 5, 1998, unless the same are
exercised in full prior thereto, and thereafter the rights evidenced by this
Warrant shall expire.
13. No Dilution or Impairment. The Company shall not undertake or
participate in any action whatsoever for the purpose or having the result of
avoiding or seeking to avoid the observance or performance of any of its
obligations pursuant to this Warrant.
14. Registration Rights. As used in this Section 14, the term
Board shall mean collectively the State of Wisconsin Investment Board, its
transferees or assignees (including the Holder), and any assignee or
transferee of Common Stock from the Board which the Board obtained upon
exercise of this Warrant, other than those who received such Common Stock in a
public offering or pursuant to Rule 144 promulgated under the Securities Act;
provided however that the transferee or assignee of the Common Stock shall be
the same as the transferee or assignee of this Warrant.
14.1 Demand Registrations. At any time within two (2) years
following the exercise of its right to purchase the Company's Common Stock
pursuant to the Warrant, the Board may demand registration under the
Securities Act of 1933, as amended (the "Securities Act"), of all of the
Common Stock issuable or which has been issued upon exercise of the Warrant,
on Form S-1 or any similar long-form registration ("Long-Form Registrations")
or on Form S-2 or S-3 or any similar short-form registration ("Short-Form
Registrations"), if available under applicable rules of the SEC. The written
request to be delivered by the Board to the Company pursuant to this Section
14.1 shall (i) specify the number of shares intended to be offered and sold by
the Board, (ii) express the present intent of the Board to offer such shares
for distribution, and (iii) describe the nature and method of the proposed
offer and sale thereof. The registration requested pursuant to this Section
14.1 is referred to herein as "Demand Registration."
(a) Number of Registrations. The Board will be entitled
to demand two (2) Long-Form or Short-Form Registrations. A registration
initiated as a Demand Registration shall include all shares of Common Stock
issuable or which has been issued upon exercise of the Warrant then owned by
the Board. A registration initiated as a Demand Registration may be withdrawn
at any time at the request of the Board or the underwriters selected by the
Board, but shall count as one of the two (2) Demand Registrations; provided
that in any event, the Company will pay all registration expenses in
connection with any registration initiated as the Demand Registration as
provided in Section 14.5.
(b) Priority on Demand Registrations. The Company will
not include in the Demand Registration any securities which are not Common
Stock owned by the Board, without the written consent of the Board. If the
Demand Registration is an underwritten offering, and the managing underwriters
advise the Company in writing that in their opinion the number of shares of
Common Stock requested to be included exceeds the number of shares of Common
Stock which can be sold in such offering, the Company will include in such
registration, prior to the inclusion of any securities which are not shares of
Common Stock owned by the Board, the number of shares of Common Stock owned by
the Board requested to be included which in the opinion of such underwriters
can be sold; and the balance of the shares of Common Stock which the Board
requested to be included in such offering shall be withheld from sale for a
period of time requested by the underwriters, but not to exceed one hundred
twenty (120) days.
(c) Restrictions on Demand Registration. The Company
will not be obligated to effect a Demand Registration within one hundred
twenty (120) days after the effective date of a registration in which the
Board was given a participation in a registered offering pursuant to Section
14.2 hereof. The Company may postpone for up to ninety (90) days the filing
or the effectiveness of a registration statement for a Demand Registration if
the Company and the Board reasonably and in good faith agree that such Demand
Registration might have an adverse effect on any proposal or plan by the
Company to engage in any financing, acquisition of assets (other than in the
ordinary course of business) or any corporate reorganization, merger,
consolidation, tender offer or similar transaction; provided that in such
event, the Board will be entitled to withdraw such request and that, if such
request is withdrawn, such Demand Registration will not count as the one
Demand Registration to which the Board is entitled.
(d) Selection of Underwriters. The Board will have the
right to select the investment banker(s) and manager(s) to administer the
offering, subject to the Company's approval (which will not be unreasonably
withheld) of such investment banker(s) and manager(s).
14.2 Participation in Registered Offerings. If the Company at
any time or times proposes or is required to register any of its Common Stock
or the equity securities for public sale in an underwritten public offering
for cash (other than in connection with any incentive stock option, bonus or
other employee benefit plan or arrangement) under the Securities Act or any
applicable state securities law, it will each such time give written notice to
the Board, of its intention to do so. Upon the written request of the board
given thirty (30) business days after receipt of any such notice (which
request shall state the intended method of disposition of such equity
securities and shall state in reasonable detail, to the extent practicable,
the net consideration, after all commissions and discounts which the
prospective seller or sellers expect to receive upon such disposition), the
Company shall use its best efforts to cause all such Common Stock requested
(which request will not be for less than thirty percent (30%) of the number of
shares of Common Stock purchasable or receivable upon exercise of the
Warrant(s)) to be registered by the Board to be registered under the
Securities Act and any applicable state securities laws (provided, that if the
managing underwriter advises that less than all of the registered shares of
equity securities should be offered for sale so as not to materially and
adversely affect the price or salability of the offering being registered by
the Company or the Board for a period not to exceed one hundred twenty (120)
days, the Board will withhold from sale for the period of time and for such
number of shares of Common Stock as the underwriter may specify; provided
further that a pro rata number of shares owned by all other shareholders of
the Company also shall be similarly withheld from sale), all to the extent
requisite to permit the sale or other disposition (in accordance with the
intended method of disposition thereof as aforesaid) by the prospective seller
or sellers of the securities so registered. In the event an underwriter is
involved with a registration initiated by the Company of the stock, and the
Board requests to participate in the registration, the Board must commit to
sell through the underwriter. The Company may, in its sole discretion,
withdraw any registration contemplated by this Section 14.2 and abandon the
proposed offering in which the Board had requested to participate without any
further obligation to the Board with respect to such registration statement or
offering; provided however that the Board shall be indemnified by the Company
for any fees, costs and expense of and incidental to such registration,
excluding the fees and disbursements of counsel acting solely on behalf of the
Board.
14.3 Obligations of the Board. It shall be a condition
precedent to the obligation of the Company to register any Common Stock
pursuant to Sections 14.1 and 14.2 hereof that the Board shall (i) furnish to
the Company such information regarding the Common Stock held by it and the
intended method of disposition thereof and other information concerning the
Board as the Company shall reasonably request and as shall be required in
connection with the registration statement to be filed by the Company;
(ii) agree to abide by such additional or customary terms affecting the
proposed offering as reasonably may be requested by the managing underwriter
of such offering, including a requirement, if applicable, to withhold (on a
pro-rata basis) from the public market for a period of at least one hundred
twenty (120) days after any such offering, any shares excluded from the
offering at the instance of the underwriter as permitted under Sections 14.1
and 14.2 hereof; and (iii) agree in writing in form satisfactory to the
Company to pay the underwriting discounts and commissions applicable to the
Common Stock being sold by it.
14.4 Registration Proceedings. If and whenever the Company is
required by the provisions of Sections 14.1 and 14.2 hereof to effect the
registration of the Common Stock under the Securities Act, until the
securities covered by such registration statement have been sold or for six
(6) months after effectiveness, whichever is the shorter period of time, the
Company shall:
(a) Prepare and file with the SEC a registration
statement with respect to such Common Stock and use its best efforts to cause
such registration statement to become and remain effective;
(b) Prepare and file with the SEC such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective;
(c) Furnish to the Board and to the underwriters of the
securities being registered such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus and such
other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities;
(d) Use its best efforts to register or qualify the
securities covered by such registration statement under such state securities
or "Blue Sky" laws of such jurisdictions as the Board may reasonably request
within twenty (20) days prior to the original filing of such registration
statement, except that the Company shall not for any purpose be required to
qualify to do business as a foreign corporation in any jurisdiction wherein it
is not so qualified, and except that the Company shall not be required to so
register or qualify in more than forty (40) such jurisdictions if in the good
faith judgment of the managing underwriter such additional registrations or
qualifications would be unreasonably expensive or harmful to the consummation
of the proposed offering;
(e) Notify the Board, promptly after it shall receive
notice thereof, of the time when such registration statement has become
effective or a supplement to any prospectus forming a part of such
registration statement has been filed;
(f) Notify the Board promptly of any request by the SEC
for the amending or supplementing of such registration statement or prospectus
or for additional information;
(g) Prepare and file with the SEC, promptly upon the
request of the Board, any amendments or supplements to such registration
statement or prospectus which, in the opinion of counsel for the Board and
counsel for the underwriter or manager of the offering, are required under the
Securities Act or the rules and regulations thereunder in connection with the
distribution of Common Stock by the Board;
(h) Prepare and promptly file with the SEC and promptly
notify the Board of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event
shall have occurred as the result of which any such prospectus or any other
prospectus as then in effect would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading;
(i) In case the Board or any underwriter for the Board is
required to deliver a prospectus at a time when the prospectus then in
circulation is not in compliance with the Securities Act, the Company will
prepare and file such supplements or amendments to such registration statement
and such prospectus or prospectuses as may be necessary to permit compliance
with the requirements of the Securities Act;
(j) Advise the Board, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the
SEC suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for that purpose and promptly use
its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued;
(k) Not file any amendment or supplement to such
registration statement or prospectus to which a majority in interest of the
Board shall reasonably have objected on the grounds that such amendment or
supplement does not comply in all material respects with the requirements of
the Securities Act or the rules and regulations thereunder, after having been
furnished with a copy thereof at least two (2) business days prior to the
filing thereof; and
(l) At the request of the Board (i) use its best efforts
to obtain and furnish on the effective date of the registration statement or,
if such registration includes an underwritten public offering, at the closing
provided for in the underwriting agreement, an opinion, dated such date, of
the counsel representing the Company for the purposes of such registration,
addressed to the underwriters, if any, and to the Board, which shall contain
such opinions as are customary in an underwritten public offering, or, if the
offering is not underwritten, shall state that such registration statement has
become effective under the Securities Act and that (or substantially to the
effect that): (a) to the best of such counsel's knowledge, no stop order
suspending the effectiveness thereof has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under the
Securities Act; (b) the registration statement, related prospectus and each
amendment or supplement thereto comply as to form in all material respects
with the requirements of the Securities Act and applicable rules and
regulations of the SEC thereunder (except that such counsel need express no
opinion as to financial statements, schedules or other financial or
statistical data contained therein); (c) such counsel has no reason to believe
that either the registration statement or the prospectus or any amendment or
supplement thereto (other than financial statements and schedules or financial
and statistical data, as to which such counsel need not comment) contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; (d) the description in the registration statement or prospectus or
any amendment or supplement thereto of all legal and governmental matters and
all contracts and other legal documents or instruments described therein are
accurate in all material respects; and (e) such counsel does not know of any
legal or governmental proceedings, pending or threatened, required to be
described in the registration statement or prospectus or any amendment or
supplement thereto which are not described as required, nor of any contracts
or documents or instruments of the character required to be described in the
registration statement or prospectus or amendment or supplement thereto or to
be filed as exhibits to the registration statement, which are not described
and filed as required; and (ii) use its best efforts to obtain letters dated
on such effective date, and such closing date, if any, from the independent
certified public accountants of the Company, addressed to the underwriters, if
any, and to the Board, stating that they are independent certified public
accountants within the meaning of the Securities Act and dealing with such
matters as the underwriters may request, or, if the offering is not
underwritten, stating that in the opinion of such accountants, the financial
statements and other financial data pertaining to the Company included in the
registration statement or the prospectus or any amendment or supplement
thereto comply in all material respects with the applicable accounting
requirements of the Securities Act; such opinion of counsel shall additionally
cover such legal matters with respect to the registration and with respect to
which such opinion is being given as the Board may reasonably request; such
letter from the independent certified public accountants shall additionally
cover such other financial matters, including information as to the period
ending not more than five (5) business days prior to the date of such letter,
with respect to the registration statement and prospectus, as the Board may
reasonably request.
14.5 Expenses. With respect to each inclusion of Common Stock
of the Board in a registration statement pursuant to Sections 14.1 and 14.2
hereof, all registration expenses, fees, costs and expenses of and incidental
to such registration, inclusion and public offering in connection therewith
shall be borne by the Company (excluding the fees and disbursements of
advisors retained by the Board and counsel acting solely on behalf of the
Board); provided, however, that the Board shall bear the Board's pro rata
share of the underwriting discount and commissions. The fees, costs and
expenses of registration to be borne by the Company shall include, without
limitation, all registration, filing and NASD fees, printing expenses, fees
and disbursements of counsel and accountants for the Company (including the
cost of any special audit requested in order to effect such registration),
fees and disbursements of counsel for the underwriter or underwriters of such
securities (if the Company and/or selling security holders are required to
bear such fees and disbursements), all legal fees and disbursements and other
expenses of complying with state securities or "Blue Sky" laws of any
jurisdiction in which the securities to be offered are to be registered or
qualified, and the premiums and other costs of policies of insurance against
liability arising out of such public offering.
14.6 Indemnification of the Board. Subject to the conditions
set forth below, in connection with any registration of securities pursuant to
Sections 14.1 or 14.2 hereof, the Company agrees to indemnify and hold
harmless the Board and each person, if any, who controls the Board (and its
respective officers, directors and agents), within the meaning of Section 15
of the Securities Act, as follows:
(a) Against any and all loss, claim, damage and expense
whatsoever arising out of or based upon (including, but not limited to, any
and all expense whatsoever reasonably incurred in investigating, preparing or
defending any litigation, commenced or threatened, or any claim whatsoever
based upon) any untrue or alleged untrue statement of a material fact
contained in any preliminary prospectus (if used prior to the effective date
of the registration statement), the registration statement or the final
prospectus (as from time to time amended and supplemented if the Company shall
have filed with the SEC any amendment thereof or amendment thereto) if used
within the period during which the Company is required to keep the
registration statement or prospectus current, or in any application or other
document executed by the Company or based upon written information furnished
by the Company filed in any jurisdiction in order to qualify the Company's
securities under the securities laws thereof; or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading; or any other
violation of applicable federal or state statutory or regulatory requirements
or limitations relating to action or inaction by the Company in the course of
preparing, filing, or implementing such registered offering; provided,
however, that the indemnity agreement contained in this Section 14.6(a) shall
not apply to any loss, claim, damage, liability or action arising out of or
based upon any untrue or alleged untrue statement or omission made in reliance
upon and in conformity with any information furnished in writing to the
Company by or on behalf of the Board expressly for use in connection
therewith;
(b) Subject to the proviso contained in Section 14.6(a)
above, against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission or any such alleged untrue statement or
omission (including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing or defending against any such
litigation or claim) if such settlement is effected with the written consent
of the Company and no indemnity shall inure to the benefit of the Board or any
controlling person thereof if the person asserting the claim failed to receive
a copy of the final prospectus at or prior to the written confirmation of the
sale of shares of Common Stock to such person if the untrue statement or
omission has been corrected in such final prospectus and the failure to
receive such final prospectus is not a necessary element of such person's
claim;
(c) In no case shall the Company be liable under this
indemnity agreement with respect to any claim made against the Board or any
such controlling person (or its respective officers, directors and agents)
unless the Company shall be notified, by letter or by telegram confirmed by
letter, of any claim made or action commenced against such persons, reasonably
promptly (but in any event within twenty (20) days of receipt of such claim
or, in the event that any summons or other service of process requiring a
responsive pleading within thirty (30) days or less time, within ten (10) days
after receipt of such summons or other process) after such person shall have
received notice of such claim or been served with the summons or other legal
process giving information as to the nature and basis of the claim, but
failure to so notify the Company shall not relieve it from any liability which
it may have otherwise than on account of this indemnity agreement. The
Company shall be entitled to participate at its own expense in the defense of
any suit brought to enforce any such claim, but if the Company elects to
assume the defense, such defense shall be conducted by counsel chosen by it,
provided that such counsel is reasonably satisfactory to the Board. In the
event the Company elects to assume the defense of any such suit and retain
such counsel, the Board shall, after the date the Board is notified of such
election, bear the fees and expenses of any counsel thereafter retained by the
Board as well as any other expenses thereafter incurred by the Board in
connection with the defense thereof; provided, however, that the Company shall
bear the fees and expenses of any such separate counsel retained by the Board
if the counsel representing the Company has a conflict of interest (which is
not waived) with the Board which would prohibit such counsel from representing
the Board.
14.7 Indemnification of Company. The Board in any registered
offering pursuant to Sections 14.1 or 14.2 above agrees to indemnify and hold
harmless the Company and each of the officers and directors and agents of it
and each other person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act against any and all such losses, liabilities,
claims, damages and expenses as are indemnified against by the Company under
Section 14.6 hereof; provided, however, that such indemnification shall be
limited to statements or omissions, if any, made (or in settlement of any
litigation effected with the written consent of the Board alleged to have been
made) in any preliminary prospectus, the registration statement or prospectus
or any amendment or supplement thereof or any application or other document in
reliance upon, and in conformity with, written information furnished in
respect of the Board, by or on behalf of the Board expressly for use in any
preliminary prospectus, the registration statement or prospectus or any
amendment or supplement thereof or in any such application or other document.
In case any action shall be brought against the Company, or any other person
so indemnified based on any preliminary prospectus, the registration statement
or prospectus or any amendment or supplement thereof or any such application
or other documents, in respect of which indemnity may be sought against the
Board, it shall have the rights and duties given to the Company, and each
other person so indemnified shall have the rights and duties given to the
Board, by the provisions of Section 14.6(c) hereof. The Company agrees to
notify the Board promptly after the assertion of any claim against the Company
in connection with the sale of securities covered by this Warrant.
14.8 Future Registration Rights. The Company may agree with
its shareholders other than the Board to allow their participation in any
registered offering which may be requested pursuant to Section 14.1 hereof,
provided all such rights of participation under Section 14.1 hereof shall be
subordinated to the rights of the Board herein, in a manner reasonably
satisfactory to counsel for the Board.
15. Descriptive Headings and Governing Law. The descriptive
headings of the several Sections of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant. This Warrant is being
delivered and is intended to be performed in the State of Wisconsin and shall
be construed and enforced in accordance with, and the rights of the parties
shall be governed by, the internal laws of such State (regardless of such
State's conflict of law provisions or principles).
IN WITNESS WHEREOF, Xxxx Company has caused this Warrant to be
signed by its duly authorized officers this 4th day of June, 1997.
XXXX COMPANY
By: /s/ Xxxxxxx X. Xxxx
Title: Vice President
Attest: /s/ Xxxxxxx X. Xxxxxxx
Title: Secretary
