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EXHIBIT 2.5
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NAM TAI ELECTRONICS, INC.
AND
FRESHMAN, MARANTZ, ORLANSKI, XXXXXX & XXXXX,
A LAW CORPORATION
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COUNSEL'S WARRANT AGREEMENT
DATED AS OF DECEMBER 2, 1997
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COUNSEL'S WARRANT AGREEMENT
THIS COUNSEL'S WARRANT AGREEMENT (the "Agreement"), dated as of December
2, 1997 is made and entered into by and between NAM TAI ELECTRONICS, INC., a
British Virgin Islands international holding corporation (the "Company") and
FRESHMAN, MARANTZ, ORLANSKI, XXXXXX & XXXXX, a law corporation (the
"Warrantholder").
The Company agrees to issue and sell, and the Warrantholder agrees to
purchase, for the price of $.001 per warrant, warrants, as hereinafter described
(the "Warrants"), to purchase up to an aggregate of up to 10,000 units (the
"Units") , each Unit consisting of (i) one (subject to adjustment pursuant to
Section 8 hereof) share (the "Shares") of the Company's Common Shares, $.01 par
value (the "Common Shares") and (ii) one common share purchase warrant (the
"Unit Warrants") exercisable to purchase one Common Share, in connection with a
public offering by the Company to its stockholders of non-transferable
subscription rights (the "Rights") to purchase up to 3,000,000 Units pursuant to
a standby underwriting agreement (the "Underwriting Agreement"), dated as of
October 30, 1997, between the Company and Xxxxxx Xxxxxxx & Associates, Inc.
Common Shares purchasable upon exercise of the Unit Warrants are hereinafter
referred to as the "Unit Warrant Stock.") The purchase and sale of the Warrants
shall occur on the Closing Date, as defined in the Underwriting Agreement, and
be subject to the conditions to the Underwriters' obligations to purchase Units
thereunder, if any. The Unit Warrants shall be subject to all of the terms and
conditions of the warrant agreement, dated November 24, 1997 between the Company
and U.S. Stock Transfer Corporation, as Warrant Agent (the "Warrant Agreement").
In consideration of the foregoing and for the purpose of defining the
terms and provisions of the Warrants and the respective rights and obligations
thereunder, the Company and the Warrantholder, for value received, hereby agree
as follows:
SECTION 1. TRANSFERABILITY AND FORM OF WARRANTS.
1.1 Registration. The Warrants shall be numbered and shall be
registered on the books of the Company when issued.
1.2 Transfer. The Warrants shall be transferable only on the
books of the Company maintained at its principal office, wherever its principal
office may then be located, upon delivery thereof duly endorsed by the
Warrantholder or by its duly authorized attorney or representative, accompanied
by proper evidence of succession, assignment or authority to transfer. Upon any
registration of transfer, the Company shall execute and deliver new Warrants to
the person entitled thereto.
1.3 Limitations on Transfer of the Warrants. The Warrants shall
not be sold, transferred, assigned or hypothecated by the Warrantholder until
November 24, 1998, except to (i) one or more persons, each of whom on the date
of transfer is a shareholder of the Warrantholder; (ii) a successor to the
Warrantholder in merger or consolidation; (iii) a purchaser of all or
substantially all of the Warrantholder's assets; or (iv) any person receiving
the Warrants from one or more of the persons listed in this subsection 1.3 at
such person's or persons' death pursuant to will, trust or the laws of intestate
succession. The Warrants may be divided or combined, upon request to the Company
by the Warrantholder, into a certificate or certificates representing the right
to purchase the same aggregate number of Units. Unless the context indicates
otherwise, the term "Warrantholder" shall include any transferee or transferees
of the Warrants pursuant to this subsection 1.3, and the term "Warrants" shall
include any and all warrants outstanding pursuant to this Agreement, including
those evidenced by a certificate or certificates issued upon division, exchange,
substitution or transfer pursuant to this Agreement.
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1.4 Form of Warrants. The text of the Warrants and of the form of
election to purchase Units shall be substantially as set forth in Exhibit A
attached hereto. The number of Shares per Unit issuable upon exercise of the
Warrants is subject to adjustment upon the occurrence of certain events, all as
hereinafter provided. The Warrants shall be executed on behalf of the Company by
its President or by a Vice President, attested to by its Secretary or an
Assistant Secretary. A Warrant bearing the signature of an individual who was at
any time the proper officer of the Company shall bind the Company,
notwithstanding that such individual shall have ceased to hold such office prior
to the delivery of such Warrant or did not hold such office on the date of this
Agreement.
The Warrants shall be dated as of the date of signature thereof by the
Company either upon initial issuance or upon division, exchange, substitution or
transfer.
SECTION 2. EXCHANGE OF WARRANT CERTIFICATE. Any Warrant certificate may
be exchanged for another certificate or certificates entitling the Warrantholder
to purchase a like aggregate number of Units as the certificate or certificates
surrendered then entitled such Warrantholder to purchase. Any Warrantholder
desiring to exchange a Warrant certificate shall make such request in writing
delivered to the Company, and shall surrender, properly endorsed, with
signatures guaranteed, the certificate evidencing the Warrant to be so
exchanged. Thereupon, the Company shall execute and deliver to the person
entitled thereto a new Warrant certificate as so requested.
SECTION 3. TERM OF WARRANTS; EXERCISE OF WARRANTS.
(a) Subject to the terms of this Agreement, the Warrantholder
shall have the right, at any time during the period commencing at 9:00 a.m.,
Pacific Time, on November 24, 1998 and ending at 5:00 p.m., Pacific Time, on
November 24, 2000 (the "Termination Date"), to purchase from the Company up to
the number of Units to which the Warrantholder may at the time be entitled to
purchase pursuant to this Agreement, upon surrender to the Company, at its
principal office, of the certificate evidencing the Warrants to be exercised,
together with the purchase form on the reverse thereof duly filled in and
signed, with signatures guaranteed, and upon payment to the Company of the
Warrant Price (as defined in and determined in accordance with the provisions of
this section 3 and sections 7 and 8 hereof), for the number of Units in respect
of which such Warrants are then exercised, but in no event for less than 100
Units (unless less than an aggregate of 100 Units are then purchasable under all
outstanding Warrants held by a Warrantholder).
(b) Payment of the aggregate Warrant Price shall be made in cash
or by check, or any combination thereof.
Upon such surrender of the Warrants and payment of such Warrant Price as
aforesaid, the Company shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the Warrantholder and in such name or
names as the Warrantholder may designate a certificate or certificates for the
number of Units so purchased upon the exercise of the Warrant, together with
cash, as provided in Section 9 hereof, in respect of any fractional Shares
otherwise issuable upon such surrender. 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 a holder of record of such securities as of the
date of surrender of the Warrants and payment of the Warrant Price, as
aforesaid, notwithstanding that the certificate or certificates representing
such securities shall not actually have been delivered or that the stock
transfer books of the Company shall then be closed. The Warrants shall be
exercisable, at the election of the Warrantholder, either in full or from time
to time in part and, in the event that a certificate evidencing the Warrants is
exercised in respect of less than all of the Units specified therein at any time
prior to the Termination Date, a new certificate evidencing the remaining
portion of the Warrants will be issued by the Company.
SECTION 4. PAYMENT OF TAXES. The Company will pay all documentary stamp
taxes, if any, attributable to the initial issuance of the Warrants or the
securities comprising the Units; provided, however, the Company shall not be
required to pay any tax which may be payable in respect of any secondary
transfer of the Warrants or the securities comprising the Units.
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SECTION 5. MUTILATED OR MISSING WARRANTS. In case the certificate or
certificates evidencing the Warrants shall be mutilated, lost, stolen or
destroyed, the Company shall, at the request of the Warrantholder, issue and
deliver in exchange and substitution for and upon cancellation of the mutilated
certificate or certificates, or in lieu of and in substitution for the
certificate or certificates lost, stolen or destroyed, a new Warrant certificate
or certificates of like tenor and representing an equivalent right or interest,
but only upon receipt of evidence satisfactory to the Company of such loss,
theft or destruction of such Warrant and a bond of indemnity, if requested, also
satisfactory in form and amount at the applicant's cost. Applicants for such
substitute Warrants certificate shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company may prescribe.
SECTION 6. RESERVATION OF SHARES. There has been reserved, and the
Company shall at all times keep reserved so long as the Warrants remain
outstanding, out of its authorized Common Shares, such number of shares of
Common Shares as shall be subject to purchase under the Warrants (including such
number of shares of Unit Warrant Stock subject to purchase upon exercise of the
Unit Warrants). Every transfer agent for the Common Shares and other securities
of the Company issuable upon the exercise of the Warrants will be irrevocably
authorized and directed at all times to reserve such number of authorized shares
and other securities as shall be requisite for such purpose. The Company will
keep a copy of this Agreement and the Warrant Agreement on file with every
transfer agent for the Common Shares and other securities of the Company
issuable upon the exercise of the Warrants. The Company will supply every such
transfer agent with duly executed stock and other certificates, as appropriate,
for such purpose and will provide or otherwise make available any cash which may
be payable as provided in Section 9 hereof.
SECTION 7. WARRANT PRICE. The price per Unit at which Units shall be
purchasable upon the exercise of the Warrants (the "Warrant Price") shall be
$20.40, subject to further adjustment pursuant to Section 8 hereof.
SECTION 8. ADJUSTMENT OF NUMBER OF SHARES. The number and kind of
securities purchasable upon the exercise of the Warrants and the Warrant Price
shall be subject to adjustment from time to time upon the happening of certain
events, as follows:
8.1 Adjustments. The number of Shares purchasable upon the
exercise of the Warrants shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in Common
Shares or make a distribution in Common Shares, (ii) subdivide its outstanding
Common Shares, (iii) combine its outstanding Common Shares into a smaller number
of shares of Common Shares, or (iv) issue by reclassification of its Common
Shares other securities of the Company, the number of Shares purchasable upon
exercise of the Warrants immediately prior thereto shall be adjusted so that the
Warrantholder shall be entitled to receive the kind and number of Shares or
other securities of the Company which it would have owned or would have been
entitled to receive immediately after the happening of any of the events
described above, had the Warrants been exercised immediately prior to the
happening of such event or any record date with respect thereto. Any adjustment
made pursuant to this subsection 8.1(a) shall become effective immediately after
the effective date of such event retroactive to the record date, if any, for
such event.
(b) In case the Company shall issue rights, options,
warrants or convertible securities to all or substantially all holders of its
Common Shares, without any charge to such holders, entitling them to subscribe
for or purchase Common Shares at a price per share which is lower at the record
date mentioned below than the then Current Market Price (as defined in Section
9), the number of Shares thereafter purchasable upon the exercise of each
Warrant shall be determined by multiplying the number of Shares theretofore
purchasable upon exercise of the Warrant by a fraction, of which the numerator
shall be the number of shares of Common Shares outstanding immediately prior to
the issuance of such rights, options, warrants or convertible securities plus
the number of additional shares of Common Shares offered for subscription or
purchase, and of which the denominator shall be the number of shares of Common
Shares outstanding immediately prior to the issuance of such rights, options,
warrants
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or convertible securities plus the number of shares which the aggregate offering
price of the total number of shares offered would purchase at such Current
Market Price. Such adjustment shall be made whenever such rights, options,
warrants or convertible securities are issued, and shall become effective
immediately and retroactive to the record date for the determination of
stockholders entitled to receive such rights, options, warrants or convertible
securities.
(c) In case the Company shall distribute to all or
substantially all holders of its Common Shares evidences of its indebtedness or
assets (excluding cash dividends or distributions out of earnings) or rights,
options, warrants or convertible securities containing the right to subscribe
for or purchase Common Shares (excluding those referred to in subsection 8.1(b)
above), then in each case the number of Shares thereafter purchasable upon the
exercise of the Warrants shall be determined by multiplying the number of Shares
theretofore purchasable upon exercise of the Warrants by a fraction, of which
the numerator shall be the then Current Market Price on the date of such
distribution, and of which the denominator shall be such Current Market Price on
such date minus the then fair value (determined as provided in subparagraph (e)
below) of the portion of the assets or evidences of indebtedness so distributed
or of such subscription rights, options, warrants or convertible securities
applicable to one share. Such adjustment shall be made whenever any such
distribution is made and shall become effective on the date of distribution
retroactive to the record date for the determination of shareholders entitled to
receive such distribution.
(d) No adjustment in the number of Shares purchasable
pursuant to the Warrants shall be required unless such adjustment would require
an increase or decrease of at least one percent in the number of Shares then
purchasable upon the exercise of the Warrants or, if the Warrants are not then
exercisable, the number of Shares purchasable upon the exercise of the Warrants
on the first date thereafter that the Warrants become exercisable; provided,
however, that any adjustments which by reason of this subsection 8.1(d) are not
required to be made immediately shall be carried forward and taken into account
in any subsequent adjustment.
(e) Whenever the number of Shares purchasable upon the
exercise of the Warrant is adjusted, as herein provided, the Warrant Price
payable upon exercise of the Warrant shall be adjusted by multiplying such
Warrant Price immediately prior to such adjustment by a fraction, of which the
numerator shall be the number of Shares purchasable upon the exercise of the
Warrant immediately prior to such adjustment, and of which the denominator shall
be the number of Shares so purchasable immediately thereafter.
(f) To the extent not covered by subsections 8.1(b) or (c)
hereof, in case the Company shall sell or issue Common Shares or rights,
options, warrants or convertible securities containing the right to subscribe
for or Common Shares at a price per share (determined, in the case of such
rights, options, warrants or convertible securities, by dividing (i) the total
amount received or receivable by the Company in consideration of the sale or
issuance of such rights, options, warrants or convertible securities, plus the
total consideration payable to the Company upon exercise or conversion thereof,
by (ii) the total number of shares covered by such rights, options, warrants or
convertible securities) lower than the then Current Market Price in effect
immediately prior to such sale or issuance, then the number of Shares thereafter
purchasable upon the exercise of the Warrants shall be determined by multiplying
the number of Shares theretofore purchasable upon exercise of the Warrants by a
fraction, of which the numerator shall be the Warrant Price and the denominator
shall be that price (calculated to the nearest cent) determined by dividing (I)
an amount equal to the sum of (A) the number of Common Shares outstanding
immediately prior to such sale or issuance multiplied by the Warrant Price, plus
(B) the consideration received by the Company upon such sale or issuance, by
(II) the total number of Common Shares outstanding immediately after such sale
or issuance. For the purposes of such adjustments, the Common Shares which the
holders of any such rights, options, warrants or convertible securities shall be
entitled to subscribe for or purchase shall be deemed issued and outstanding as
of the date of such sale or issuance and the consideration received by the
Company therefor shall be deemed to be the consideration received by the Company
for such rights, options, warrants or convertible securities, plus the
consideration or premiums stated in such rights, options, warrants or
convertible securities to be paid for the Common Shares covered thereby. In case
the Company shall sell or issue Common Shares or rights, options, warrants or
convertible securities containing the right to subscribe for or purchase Common
Shares for a consideration consisting, in whole or in part, of property other
than cash or its equivalent, then in determining the "price per share" of Common
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Shares and the "consideration received by the Company" for purposes of the first
sentence of this subsection 8.1(f), the Board of Directors shall determine the
fair value of said property, and such determination, if reasonable and based
upon the Board of Directors' good faith business judgment, shall be binding upon
the Warrantholder. In determining the "price per share" of the Common Shares,
any underwriting discounts or commissions shall not be deducted from the price
received by the Company for sales of securities registered under the Act.
(g) Whenever the number of Shares purchasable upon the
exercise of the Warrants is adjusted as herein provided, the Company shall cause
to be promptly mailed to the Warrantholder by first class mail, postage prepaid,
notice of such adjustment and a certificate of the chief financial officer of
the Company setting forth the number of Shares purchasable upon the exercise of
the Warrants after such adjustment, a brief statement of the facts requiring
such adjustment and the computation by which such adjustment was made.
(h) For the purpose of this subsection 8.1, the term
"Common Shares" shall mean (i) the class of stock designated as the Common
Shares of the Company at the date of this Agreement, or (ii) any other class of
stock resulting from successive changes or reclassifications of such Common
Shares consisting solely of changes in par value, or from par value to no par
value, or from no par value to par value. In the event that at any time, as a
result of an adjustment made pursuant to this Section 8, the Warrantholder shall
become entitled to purchase any securities of the Company other than Common
Shares and Unit Warrants, (i) if the Warrantholder's right to purchase is on any
other basis than that available to all holders of the Company's Common Shares,
the Company shall obtain an opinion of an independent investment banking firm
valuing such other securities and (ii) thereafter the number of such other
securities so purchasable upon exercise of the Warrants 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 this
Section 8.
(i) Upon the expiration of any rights, options, warrants
or conversion privileges, if such shall not have been exercised, the number of
Shares purchasable upon exercise of the Warrants, to the extent the Warrants
have not then been exercised, shall, upon such expiration, be readjusted and
shall thereafter be such as they would have been had they been originally
adjusted (or had the original adjustment not been required, as the case may be)
on the basis of (A) the fact that the only Common shares so issued were the
Common Shares, if any, actually issued or sold upon the exercise of such rights,
options, warrants or conversion privileges, and (B) the fact that such shares of
Common Shares, if any, were issued or sold for the consideration actually
received by the Company upon such exercise plus the consideration, if any,
actually received by the Company for the issuance, sale or grant of all such
rights, options, warrants or conversion privileges whether or not exercised;
provided, however, that no such readjustment shall have the effect of decreasing
the number of Shares purchasable upon exercise of the Warrants by an amount in
excess of the amount of the adjustment initially made in respect of the
issuance, sale or grant of such rights, options, warrants or conversion
privileges.
8.2 No Adjustment for Dividends. Except as provided in subsection
8.1, no adjustment in respect of any dividends or distributions out of earnings
shall be made during the term of the Warrants or upon the exercise of the
Warrants.
8.3 No Adjustment in Certain Cases. No adjustments shall be made
pursuant to Sections 3 or 8 hereof in connection with the issuance of Units,
Shares, Unit Warrants or Unit Warrant Stock sold as part of the public sale and
issuance of Units pursuant to the Underwriting Agreement or the issuance of
Units, Shares, Unit Warrants or Unit Warrant Stock upon exercise of the
Warrants. No adjustments shall be made pursuant to Sections 3 or 8 hereof in
connection with the grant or exercise of presently authorized or outstanding
options to purchase, or the issuance of shares, aggregating up to 1,000,000
Common Shares under the Company's existing stock option plans.
8.4 Preservation of Purchase Rights upon Reclassification,
Consolidation, etc. 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, assets or business of the Company as an
entirety or substantially
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as an entirety, the Company or such successor or purchasing corporation, as the
case may be, shall execute with the Warrantholder an agreement that the
Warrantholder shall have the right thereafter upon payment of the Warrant Price
in effect immediately prior to such action to purchase, upon exercise of the
Warrants, the kind and amount of shares and other securities and property which
it would have owned or have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance had the Warrants (and each underlying
security) been exercised immediately prior to such action. In the event of a
merger described in Section 368(a)(2)(E) of the Internal Revenue Code of 1986,
as amended, in which the Company is the surviving corporation, the right to
purchase Units under the Warrants shall terminate on the date of such merger and
thereupon the Warrants shall become null and void, but only if the controlling
corporation shall agree to substitute for the Warrants its warrant which
entitles the holder thereof to purchase upon its exercise the kind and amount of
shares and other securities and property which it would have owned or been
entitled to receive had the Warrants been exercised immediately prior to such
merger. Any such agreements referred to in this subsection 8.4 shall provide for
adjustments, which shall be as nearly equivalent as may be practicable to the
adjustments provided for in Section 8 hereof. The provisions of this subsection
8.4 shall similarly apply to successive consolidations, mergers, sales or
conveyances.
8.5 Par Value of Common Shares. Before taking any action which
would cause an adjustment effectively reducing the portion of the Warrant Price
allocable to each Share below the then par value per Common Shares issuable upon
exercise of the Warrants, the Company will take any corporate action which may,
in the opinion of its counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable Common Shares upon
exercise of the Warrants.
8.6 Independent Public Accountants. The Company may retain a firm
of independent public accountants of recognized national standing (which may be
any such firm regularly employed by the Company) to make any computation
required under this Section 8, and a certificate signed by such firm shall be
conclusive evidence of the correctness of any computation made under this
Section 8.
8.7 Statement on Warrant Certificates. Irrespective of any
adjustments in the number of securities issuable upon exercise of Warrants,
Warrant certificates theretofore or thereafter issued may continue to express
the same number of securities as are stated in the similar Warrant certificates
initially issuable pursuant to this Agreement. However, the Company may, at any
time in its sole discretion (which shall be conclusive), make any change in the
form of Warrant certificate that it may deem appropriate and that does not
affect the substance thereof; and any Warrant certificate thereafter issued,
whether upon registration of transfer of, or in exchange or substitution for, an
outstanding Warrant certificate, may be in the form so changed.
SECTION 9. FRACTIONAL INTERESTS; CURRENT MARKET PRICE. The Company shall
not be required to issue fractional Shares on the exercise of the Warrants. If
any fraction of a Share would, except for the provisions of this Section 9, be
issuable on the exercise of the Warrants (or specified portion thereof), the
Company shall pay an amount in cash equal to the then Current Market Price
multiplied by such fraction. For purposes of this Agreement, the term "Current
Market Price" shall mean (i) if the Common Shares are traded in the
over-the-counter market and not in the NASDAQ National Market System nor on any
national securities exchange, the average of the per share closing bid prices of
the Common Shares on the 30 consecutive trading days immediately preceding the
date in question, as reported by NASDAQ or an equivalent generally accepted
reporting service, or (ii) if the Common Shares are traded in the NASDAQ
National Market System or on a national securities exchange, the average for the
30 consecutive trading days immediately preceding the date in question of the
daily per share closing prices of the Common Shares in the NASDAQ National
Market System or on the principal stock exchange on which it is listed, as the
case may be. For purposes of clause (i) above, if trading in the Common Shares
is not reported by NASDAQ, the bid price referred to in said clause shall be the
lowest bid price as reported in the "pink sheets" published by National
Quotation Bureau, Incorporated. The closing price referred to in clause (ii)
above shall be the last reported sale price or, in case no such reported sale
takes place on such day, the average of the reported closing bid and asked
prices, in either case in the NASDAQ National Market System or on the national
securities exchange on which the Common Shares are then listed.
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SECTION 10. NO RIGHTS AS STOCKHOLDER; NOTICES TO WARRANTHOLDER. Nothing
contained in this Agreement or in the Warrants shall be construed as conferring
upon the Warrantholder or its transferees any rights as a stockholder of the
Company, including the right to vote, receive dividends, consent or receive
notices as a stockholder in respect of any meeting of stockholders for the
election of directors of the Company or any other matter. If, however, at any
time prior to the expiration of the Warrants and prior to their exercise, any
one or more of the following events shall occur:
(a) any action which would require an adjustment pursuant to
Section 8.1 or 8.4; or
(b) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation, merger or sale of its property,
assets and business as an entirety or substantially as an entirety) shall be
proposed;
then the Company shall give notice in writing of such event to the
Warrantholder, as provided in Section 11 hereof, at least 20 days 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 any relevant dividend,
distribution, subscription rights or other 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. Failure to mail or receive such notice
or any defect therein shall not affect the validity of any action taken with
respect thereto.
SECTION 11. NOTICES. Any notice pursuant to this Agreement by the
Company or by a Warrantholder, a holder of Shares, Unit Warrants or Unit Warrant
Stock shall be in writing and shall be deemed to have been duly given if
delivered or mailed by certified mail, return receipt requested:
(a) If to a Warrantholder or a holder of Shares, Unit Warrants or
Unit Warrant Stock, addressed to Freshman, Marantz, Orlanski, Xxxxxx & Xxxxx, a
law corporation, Eighth Floor, East Tower, 0000 Xxxxxxxx Xxxx., Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000; Attention: Xxxx X. Xxxxx.
(b) If to the Company addressed to it at 000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, X.X. Xxxxxx X0X 0X0, Attention: Xx. X.X. Xxx,
Chairman of the Board.
Each party may from time to time change the address to which notices to
it are to be delivered or mailed hereunder by notice in accordance herewith to
the other party.
SECTION 12. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company, the Warrantholders, or the
holders of Shares, Unit Warrants or Unit Warrant Stock shall bind and inure to
the benefit of their respective successors and assigns hereunder.
SECTION 13. MERGER OR CONSOLIDATION OF THE COMPANY. The Company will not
merge or consolidate with or into any other corporation or sell all or
substantially all of its property to another corporation, unless the provisions
of Section 8.4 are complied with.
SECTION 14. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All statements
contained in any schedule, exhibit, certificate or other instrument delivered by
or on behalf of the parties hereto, or in connection with the transactions
contemplated by this Agreement, shall be deemed to be representations and
warranties hereunder. Notwithstanding any investigations made by or on behalf of
the parties to this Agreement, all representations, warranties and agreements
made by the parties to this Agreement or pursuant hereto shall survive.
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SECTION 15. GOVERNING LAW. This Agreement shall be deemed to be a
contract made under the laws of the State of California and for all purposes
shall be construed in accordance with the laws of said State applicable to
contracts entered into and performed in said State, and without regard to any
conflicts of laws principles thereof.
SECTION 19. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall
be construed to give to any person or corporation other than the Company, the
Warrantholders and the holders of Shares, Unit Warrants or Unit Warrant Stock
any legal or equitable right, remedy or claim under this Agreement. This
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrantholders and the holders of Shares, Unit Warrants and Unit Warrant Stock.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, all as of the day and year first above written.
NAM TAI ELECTRONICS, INC.
By: (s.d.) X. X. Xxx
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Chairman of the Board
FRESHMAN, MARANTZ, ORLANSKI, XXXXXX & XXXXX
a law corporation
By (s.d.) Xxxx X. Xxxxx
----------------------------------
Vice-President
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Exhibit A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
EXCHANGED, HYPOTHECATED OR TRANSFERRED IN ANY MANNER EXCEPT IN
COMPLIANCE WITH SECTION 1 OF THE AGREEMENT PURSUANT TO WHICH THEY WERE
ISSUED.
Warrant Certificate No. _______
COUNSEL'S WARRANT TO PURCHASE 10,000 UNITS, EACH UNIT CONSISTING OF ONE
COMMON SHARE AND ONE WARRANT EXERCISABLE TO PURCHASE ONE COMMON SHARE
VOID AFTER 5:00 P.M.,
PACIFIC TIME, ON NOVEMBER 24, 2000
NAM TAI ELECTRONICS, INC.
This certifies that, for value received, Freshman, Marantz, Orlanski,
Xxxxxx & Xxxxx, a law corporation, the registered holder hereof or assigns (the
"Warrantholder"), is entitled to purchase from NAM TAI ELECTRONICS, INC. (the
"Company"), at any time during the period commencing at 9:00 a.m., Pacific Time,
on November 24, 1998, and before 5:00 p.m., Pacific Time, on November 24, 2000,
at the purchase price per Unit of $20.40 (the "Warrant Price"), the number of
Units of the Company set forth above (the "Units"). The number of Common Shares
of the Company included in the Units purchasable upon exercise of each Warrant
evidenced hereby shall be subject to adjustment from time to time as set forth
in the Counsel's Warrant Agreement referred to below.
The Warrants evidenced hereby may be exercised in whole or in part by
presentation of this Warrant Certificate with the Purchase Form attached hereto
duly executed (with a signature guarantee as provided thereon) and simultaneous
payment of the Warrant Price at the principal office of the Company. Payment of
such price shall be made at the option of the Warrantholder in cash or by check.
The Warrants evidenced hereby represent the right to purchase an
aggregate of up to 10,000 Units and are issued under and in accordance with a
Counsel's Warrant Agreement, dated as of December 1, 1997 (the "Counsel's
Warrant Agreement"), between the Company and Freshman, Marantz, Orlanski, Xxxxxx
& Xxxxx, a law corporation, and are subject to the terms and provisions
contained in the Counsel's Warrant Agreement, to all of which the Warrantholder
by acceptance hereof consents.
Upon any partial exercise of the Warrants evidenced hereby, there shall
be signed and issued to the Warrantholder a new Warrant Certificate in respect
of the Units as to which the Warrants evidenced hereby shall not have been
exercised. These Warrants may be exchanged at the office of the Company by
surrender of this Warrant Certificate properly endorsed for one or more new
Warrants of the same aggregate number of Units as here evidenced by the Warrant
or Warrants exchanged. No fractional Shares will be issued upon the exercise of
rights to purchase the Units hereunder, but the Company shall pay the cash value
of any fraction upon the exercise of one or more Warrants. These Warrants are
transferable at the office of the Company in the manner and subject to the
limitations set forth in the Counsel's Warrant Agreement.
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This Warrant Certificate does not entitle any Warrantholder to any of
the rights of a shareholder of the Company.
NAM TAI ELECTRONICS, INC.
By__________________________________
Dated: December 1, 1997 X.X. Xxx,
Chairman of the Board
ATTEST: [Seal]
---------------------------------
Secretary
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NAM TAI ELECTRONICS, INC.
PURCHASE FORM
NAM TAI ELECTRONICS, INC.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, X.X. Xxxxxx X0X 0X0
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant Certificate for, and to purchase
thereunder, ____________ Units (the "Units") provided for therein, and requests
that certificates for the Units be issued in the name of:
--------------------------------------------------------------
(Please Print or Type Name, Address and Social Security Number
--------------------------------------------------------------
--------------------------------------------------------------
and, if said number of Units shall not be all the Units purchasable hereunder,
that a new Warrant Certificate for the balance of the Units purchasable under
the within Warrant Certificate be registered in the name of the undersigned
Warrantholder or his Assignee as below indicated and delivered to the address
stated below.
Dated: _______________________
Name of Warrantholder
or Assignee:_____________________________________________
(Please Print)
Address:_________________________________________________
_________________________________________________
Signature:_______________________________________________
Note: The above signature must correspond with the name as written upon the face
of this Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, unless these Warrants have been assigned.
Signature Guaranteed:______________________
(Signature must be guaranteed by a bank or trust company having an office or
correspondent in the United States or by a member firm of a registered
securities exchange or the National Association of Securities Dealers, Inc.)
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ASSIGNMENT
(To be signed only upon assignment of Warrants)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Name and Address of Assignee Must
Be Printed or Typewritten)
-------------------------------------------
-------------------------------------------
-------------------------------------------
the within Warrants, hereby irrevocably constituting and appointing
____________________ Attorney to transfer said Warrants on the books of the
Company, with all power of substitution in the premises.
Dated:___________________ ________________________________________
Signature of Registered Holder
Note: The signature on this assignment must correspond with the name as it
appears upon the face of the within Warrant Certificate in every
particular, without alteration or enlargement or any change whatever.
Signature Guaranteed:____________________________
(Signature must be guaranteed by a bank or trust company having an office or
correspondent in the United States or by a member firm of a registered
securities exchange or the National Association of Securities Dealers, Inc.)
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