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EXHIBIT 4.5
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XXXXXXX CONTROLS, INC.
STANDARD DEBT SECURITIES WARRANT
AGREEMENT PROVISIONS
______________ , 1996
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From time to time, Xxxxxxx 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 debt securities of the
Company ("Debt Securities"). 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 Debt Securities
purchasable upon exercise of such Warrants,
(c) the date on which the right to exercise such Warrants shall
commence or,
(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 which the Exercise
Price may be paid pursuant to Section 6,
(g) the Call Price, Call Date and Call Terms pursuant to Section 7,
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(h) the limitations, if any, upon the Reduced Exercise Price and the
Reduced Exercise Price Period pursuant to Section 8.
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.
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
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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 16 hereof, for another Warrant Certificate or
other Warrant Certificates of like tenor representing in the aggregate a like
number of Warrants.
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.
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
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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 (i) the close of business on the
date set forth pursuant to Section 1, or (ii) 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 13 (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, 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) Debt Securities at the price
set forth pursuant to Section 1 (such price being the "Exercise Price") upon
depositing with the Warrant Agent at a 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 are 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
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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 and the Trustee 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 Debt Securities 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 or the Trustee
shall reasonably require.
(d) A Warrant Certificate may be exercised in part to purchase Debt
Securities only in the denominations authorized pursuant to the indenture under
which the Debt Securities are issued (the "Indenture").
(e) Subject to Section 10, upon such surrender of a Warrant
Certificate and as soon as practicable after receipt of payment of the Exercise
Price and the Warrant Certificate properly completed and duly executed at a
Warrant Agent Office of the Warrant Agent, the Company shall issue, pursuant to
the Indenture, to or upon the order of the holder of such Warrant Certificate,
the Debt Securities in authorized denominations to which such holder is
entitled, in fully registered form in such name or names as may be directed by
such holder. 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 and if sufficient
time remains prior to the Expiration Date, a new Warrant Certificate or
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
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given to registered holders of Warrants in the manner provided in Section 13.
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 13. After the termination of the Reduced
Exercise Price Period, the Exercise Price shall be such Exercise Price that
would have been in effect had there been no reduction in the Exercise Price
pursuant to the provisions of this Section 8.
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 Debt
Securities 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 Debt Securities 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
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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. Obtaining of Governmental Approvals. The Company will
from time to time take all action that may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under federal and state 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 Debt Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 13. Notices to Warrantholders. 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 Period, as the
case may be, at least once a week for two successive weeks prior to the
implementation of such terms.
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SECTION 14. 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 15. 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.
(b) The Warrant Agent shall have no duty or responsibility in case of
any default by the Company in the performance of its covenants or agreements
contained in the Warrant Certificates or the Indenture or in the case of the
receipt of any written demand from a holder of a Warrant Certificate with
respect to such default, including any duty or responsibility to initiate or
attempt to initiate any proceedings at law or otherwise or to make any demand
upon the Company.
(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
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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
the ratable benefit of the registered holders of the Warrants, as their
respective rights or interests may appear.
(g) The Warrant Agent and its officers, directors and employees may
act as Trustee under the Indenture and may become the owner of, or acquire any
interest in, any Warrant Certificates, with the same rights that it or they
would have if it were not the Warrant Agent hereunder, and, to the extent
permitted by applicable law, they may engage or be interested in any financial
or other transaction with the Company and may act on, or as depositary, trustee
or agent for, any committee or body of holders of the Debt Securities or other
obligations of the Company as freely as if it were not the Warrant Agent.
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.
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(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).
(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 specifically prescribed) which may be deemed to be
conclusively proved and established by such signed statement.
(l) Except as set forth in the Warrant Agreement, the Warrant Agent
shall not be under any liability for interest on any moneys or other
consideration at any time received by it pursuant to any of the provisions of
this Agreement or of the Warrant Certificates.
SECTION 16. 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 15(e) hereof for,
and to the reimbursement of all
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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
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.
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SECTION 17. No Rights as Securityholders Conferred by Warrant
Certificates. No Warrant Certificate shall entitle the holder thereof to any of
the rights of a holder of Debt Securities, including the right to receive the
payment of principal of, or interest on, the Debt Securities or to enforce any
of the covenants of the Debt Securities or the Indenture except as otherwise
provided in the Indenture.
SECTION 18. 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 Debt
Securities issued upon such exercise, a copy of the prospectus.
SECTION 19. 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 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:
Xxxxxxx Controls, Inc.
0000 Xxxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
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 20. 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
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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 21. 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 22. 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 15 shall survive such termination.
SECTION 23. 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, 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 24. 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 25. 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 26. 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 27. 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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