EXHIBIT 3
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT.
ARTESYN TECHNOLOGIES, INC.
WARRANT TO PURCHASE SHARES OF COMMON STOCK
No. CS-1 January 15, 2002
THIS CERTIFIES THAT, for value received, Finestar International
Limited, a British Virgin Islands corporation (and each person to whom this
Warrant is validly transferred in accordance with the terms hereof, the
"Holder"), is entitled, under the terms and conditions hereof, to purchase from
Artesyn Technologies, Inc, a Florida corporation (the "Company"), 1,550,000
shares of the Company's Common Stock (subject to adjustment as provided herein)
(the "Common Stock"), in accordance with the terms hereof, at a price of $11.50
per share (subject to adjustment as provided herein, the "Exercise Price"),
except as otherwise provided herein, upon surrender of this Warrant to the
Company. Upon delivery of this Warrant, together with payment of the Exercise
Price multiplied by the total number of shares of Common Stock thereby
purchased, at the principal office of the Company or at such other office or
agency as the Company may designate by notice in writing to the Holder (the
"Designated Office"), the Holder shall be entitled to receive a certificate or
certificates for the shares of Common Stock so purchased. The date on which the
Company has received (i) this Warrant and (ii) payment for the shares of Common
Stock, in accordance with the terms hereof, shall be referred to herein as the
"Exercise Date."
This Warrant is subject to the following terms and conditions:
1. Exercise of Warrant.
1.1 Term. This Warrant is exercisable, in whole or in part, at
----
any time and from time to time after January 15, 2002 (the "Original Issue
Date") until 5:00 p.m. (Pacific Time) on January 15, 2007 (the "Termination
Date").
1.2 Method of Exercise. While this Warrant remains outstanding and
------------------
exercisable in accordance with Section 1.1 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(a) the surrender of the Warrant, together with a duly executed
copy of the form subscription attached hereto, to the Secretary of the Company
at the Designated Office; and
(b) subject to Section 1.3 below, the payment to the Company by
wire transfer or check acceptable to the Company of the aggregate Exercise Price
for the number of shares of Common Stock to be purchased.
1.3 Net Exercise. In lieu of exercising this Warrant in the manner
------------
provided above in Section 1.2, the Holder may elect to receive shares of Common
Stock equal to the value of this Warrant (or the portion thereof being
cancelled) by surrender of this Warrant at the principal office of the Company
together with notice of such election, in which event the Company shall issue to
the Holder a number of shares of Common Stock computed using the following
formula:
X = Y(A-B)
------
A
X = The number of shares of Common Stock to be issued to Holder.
Y = The number of shares of Common Stock purchasable under this
Warrant (on the date of exercise), or, if this Warrant is
exercised in part, the number of shares for which this Warrant is
then being exercised.
A = The Current Market Value of one share of the Common Stock
purchasable under this Warrant (on the date of exercise).
B = The Exercise Price (in effect on the date of exercise).
The "Current Market Value" of the Common Stock shall equal:
(a) if traded on a securities exchange or the Nasdaq National
Market, the current market value shall be deemed to be the average closing price
of the securities on such exchange for the 5 trading day period ending 5 days
prior to the date this Warrant is surrendered for exchange, or
(b) if actively traded over-the-counter, the current market value
shall be deemed to be the average closing bid or sale price (whichever is
applicable) for the 5 trading day period ending 5 days prior to the date this
Warrant is surrendered for exchange;
(c) the actual purchase price of shares of Common Stock if
exchanged in connection with a sale of the Company; or
2
(d) if the foregoing clauses (a)-(c) is not applicable, the value
determined in good faith by the Board of Directors of the Company.
1.4 Automatic Exercise. To the extent this Warrant is not previously
------------------
exercised in its entirety, and if the Current Market Value of one share of the
Company's Common Stock is greater than the Exercise Price then in effect, this
Warrant shall be deemed automatically exercised pursuant to Section 1.3 above
(even if not surrendered) immediately before its expiration on the Termination
Date. To the extent this Warrant or any portion thereof is deemed automatically
exercised pursuant to this Section 1.4, the Company agrees to promptly notify
the Holder hereof of the number of shares of Common Stock, if any, the Holder
hereof is to receive by reason of such automatic exercise.
1.5 Certificates for Shares. The Company shall, within 20 days after
-----------------------
the Exercise Date, deliver a certificate for the shares of Common Stock
purchased in the name of the Holder, or as the Holder may direct (subject to the
restrictions upon transfer contained herein and upon payment by the Holder of
any applicable transfer taxes). In case the Holder shall exercise this Warrant
with respect to less than all of the shares of Common Stock that may be
purchased under this Warrant, the Company shall execute a new Warrant in the
form of this Warrant for the balance of such shares and promptly deliver such
new Warrant to the Holder. The Company shall pay any and all issue and other
taxes (other than income taxes and transfer taxes) that may be payable in
respect of any issue or delivery of shares of Common Stock upon exercise of this
Warrant. Notwithstanding any other provision of this Warrant, the Company shall,
if the Holder so elects, deliver the Common Stock issuable upon exercise of this
Warrant to any third party designated by the Holder.
1.6 Transfer of Warrant.
-------------------
(a) The Holder of this Warrant may transfer this Warrant, in
whole or in part, from time to time and at any time after the Original Issue
Date, to any affiliate (or affiliate(s) thereof, direct or indirect) of the
initial Holder, or to any affiliate(s), direct or indirect, of such
transferee(s), pursuant to the terms of paragraph (c) below.
(b) In addition to the rights set forth in paragraph (a) above,
at any time on or after the first anniversary of the Original Issue Date, the
Holder of this Warrant may transfer this Warrant, in whole or in part (in an
amount exercisable for not less than 250,000 shares of Common Stock) pursuant to
the terms of paragraph (c) below.
(c) This Warrant may be transferred pursuant to paragraph (a) or
(b) above upon surrender of this Warrant for registration of transfer at the
Designated Office, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company duly executed by, the Holder hereof
or such Holder's attorney duly authorized in writing, whereupon the transfer
will be registered on the register maintained by the Company, and thereupon one
or more new Warrants, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees. No
service charge shall be made for any such registration of transfer, but the
Company may require payment of a sum sufficient to recover any tax or other
governmental charge payable in connection therewith. Prior to due presentation
of this Warrant for registration of transfer, the Company and
3
(c) any agent of the Company may treat the Holder in whose name this Warrant is
registered as the owner thereof for all purposes, and neither the Company nor
any such agent shall be affected by notice to the contrary.
1.7 Restrictions on Issuance upon Exercise.
--------------------------------------
(a) Notwithstanding anything to the contrary stated herein, if an
event occurs or circumstances exist that, assuming issuance of the full number
of shares of Common Stock issuable upon exercise of the Warrant (in whole or in
part) in accordance with Section 1.2 or 1.3 hereunder, as the case may be, would
result in a violation of Nasdaq Marketplace Rule 4350 (or any similar applicable
rule), then upon exercise of the Warrant (in whole or in part), the Company
shall:
(i) promptly issue the maximum number of shares of Common
Stock allowable without resulting in such violation;
(ii) promptly take all action necessary in accordance with
applicable law and the Company's certificate of incorporation and bylaws to hold
and convene a meeting of the Company's shareholders (but not later than 45 days
after the date of exercise of the Warrant) and the Company and its Board of
Directors shall not postpone or adjourn such meeting, and the Company and its
Board of Directors shall take all other actions necessary or advisable, to
secure the vote or consent of the shareholders to approve the issuance in full
of the shares of Common Stock issuable upon exercise of the Warrant;
(iii) if necessary shareholder approval or consent has been
received, promptly issue the remaining shares issuable upon exercise of the
Warrant (the "NASD Excess Shares"); and
(iv) if necessary shareholder approval or consent has not
been received and the meeting described in subparagraph (ii) above has been
convened, promptly pay to the Holder in cash the amount equal to (A) the NASD
Excess Shares multiplied by (B) the Current Market Price per share of Common
Stock on the date of the exercise of the Warrant, such amount less any unpaid
aggregate Exercise Price.
(b) Notwithstanding anything to the contrary contained herein, if
issuance of the full number of shares of Common Stock issuable upon exercise of
the Warrant (in whole or in part) in accordance with Section 1.2 or 1.3
hereunder, as the case may be, would require the Company and the Holder to each
make an HSR Filing and file related material with the FTC and DOJ under the HSR
Act (as those terms are defined in the convertible note executed and delivered
by the Company and dated as of the date hereof (the "Note")), the Company shall,
upon exercise of the Warrant:
(i) promptly issue the maximum number of shares of Common
Stock allowable without making such HSR Filing as represented by a stock
certificate or certificates bearing a customary legend with respect to the
Securities Act of 1933, as amended (the "Securities Act");
4
(ii) promptly issue the remainder of the shares
issuable upon such exercise of the Warrant (the "HSR Excess Shares") as
represented by a stock certificate or certificates bearing both a customary
Securities Act legend and the following legend (the "Non-Voting Legend"):
BY ITS RECEIPT AND ACCEPTANCE OF DELIVERY HEREOF, THE HOLDER
AGREES AND ACKNOWLEDGES THAT THE SHARES REPRESENTED BY THIS
CERTIFICATE WILL NOT BE VOTED IN ELECTIONS FOR DIRECTORS OF
ARTESYN TECHNOLOGIES, INC. AND ARE SUBJECT TO THE TERMS OF THE
WARRANT TO PURCHASE SHARES OF COMMON STOCK ISSUED BY ARTESYN
TECHNOLGIES, INC. ON JANUARY 15, 2002 OR ANY WARRANT(S) ISSUED IN
CONNECTION WITH THE TRANSFER OR REPLACEMENT THEREOF (INCLUDING
THE GOVERNING LAW PROVISIONS THEREIN).
(iii) promptly cooperate with the Holder in good
faith to submit such HSR Filing; provided, however, that the Company shall not
-------- -------
seek early termination of any waiting period under the HSR Act without the prior
written consent of the Holder; provided, further, that if the Holder so
-------- -------
requests, the Company and the Holder shall each use all reasonable efforts to
obtain early termination of such waiting period, and shall in any case promptly
supply the other with any information which may be required in order to
effectuate such filings and supply any additional information which may be
reasonably required by the FTC or DOJ; and
(iv) remove the Non-Voting Legend from stock
certificates representing such number of HSR Excess Shares as the Holder may
request from time to time (including with respect to transfers other than to a
member of the Purchaser Group (as that term is defined in the Securities
Purchase Agreement dated as of January 14, 2002, by and between the Holder and
the Company); provided, however, that the removal of the Non-Voting Legend from
-------- -------
such stock certificates representing HSR Excess Shares would not require the
Company and the Holder to each make an HSR Filing. Upon the removal of the
Non-Voting Legend in accordance with this subsection (iv), the HSR Excess Shares
shall no longer be HSR Excess Shares for purposes of Section 1.7(c) herein.
(c) By its receipt and acceptance of this Warrant, the
Holder agrees that it will not vote the HSR Excess Shares in elections for
directors of the Company. In the event that the Holder attempts to vote such
shares, whether in person or by proxy, in violation of this agreement, the
Holder acknowledges and agrees that the Company shall have no obligation to
recognize or record any such votes. Receipt by the Company of the Holder's
acknowledgment of receipt of this Warrant shall constitute written
acknowledgment and agreement to be bound by the contractual obligations of this
Section 1.7(c). This provision shall survive any exercise of this Warrant.
2. Certain Adjustments.
2.1 Adjustment for Issuances of Additional Shares.
---------------------------------------------
5
(a) In the event that the Company shall issue, from time to time,
Additional Shares of Common Stock (including Additional Shares of Common Stock
deemed to be issued pursuant to Section 2.1(c)) without consideration or for a
consideration per share less than the Exercise Price in effect on the date of
and immediately prior to such issue:
(i) after the Original Issue Date and on or before June
15, 2002, then and in such event, the Exercise Price in effect on the date of
and immediately prior to such issue shall be decreased, concurrently with such
issue, to a price equal to (A) the aggregate consideration received by the
Company for the Additional Shares of Common Stock, divided by (B) the total
number of Additional Shares of Common Stock; or
(ii) after June 15, 2002, then and in such event, the
Exercise Price in effect on the date of and immediately prior to such issue
shall be decreased, concurrently with such issue, by multiplying such Exercise
Price by a fraction:
A. the numerator of which shall be (1) the number of
shares of Common Stock outstanding immediately prior to such issue plus (2) the
number of shares of Common Stock which the aggregate consideration received by
the Company for the total number of Additional Shares of Common Stock so issued
would purchase at such Exercise Price, and
B. the denominator of which shall be (1) the number of
shares of Common Stock outstanding immediately prior to such issue plus (2) the
number of Additional Shares of Common Stock so issued.
(b) Special Definitions. For purposes of this Section 2.1, the
--------------------
following definitions apply:
(i) "Additional Shares of Common Stock" shall mean all
---------------------------------
shares of Common Stock issued (or, pursuant to Section 2.1(c), deemed to be
issued) by the Company after the Original Issue Date, other than:
A. this Warrant or a new Warrant or Warrants issued in
replacement thereof, or shares of Common Stock issued or issuable upon exercise
thereof;
B. the Note, or a new Note or Notes issued in
replacement thereof, or shares of Common Stock issued or issuable upon exercise
thereof;
C. shares of Common Stock issued or issuable upon
exercise of Options (net of repurchases, expirations, cancellations and
terminations) (and including options outstanding as of the Original Issue Date)
and any additional shares pursuant to stock option or stock purchase agreements
approved by a majority of the Board of Directors or any committee thereof, in
all cases issued to officers, directors or employees of, or consultants to, the
Company under stock option or stock purchase plans that have been approved by
the shareholders of the Company;
6
D. shares of Common Stock issued or issuable upon
conversion or exercise of convertible or exercisable securities in existence on
the date hereof that have not yet been converted or exercised as of the date
hereof;
E. shares of Common Stock for which adjustment to
the Exercise Price is made pursuant to Sections 2.2 to 2.6;
F. the grant, sale or issuance of Options,
Convertible Securities and or Common Stock pursuant to the Amended and Restated
Rights Agreement between the Company and Bank of New York dated as of November
21, 1998;
G. the issuance of shares of Common Stock (or
Options) or Convertible Securities in connection with acquisitions and
commercial relationships (provided, however, that a purpose of any such
transaction is not capital raising);
H. the issuance of shares of Common Stock in
satisfaction of any earn-out or contingent payment obligation of the Company
arising out of acquisitions consummated before the Original Issue Date (or
Options issued in consideration for any forbearance thereof); and
I. the issuance of shares of capital stock to the
Holder or any affiliate thereof in connection with any strategic relationship,
joint venture, merger, consolidation or acquisition (provided, however, that a
purpose of any such transaction is not capital raising).
(ii) "Convertible Securities" shall mean any evidences
----------------------
of indebtedness, shares (other than Common Stock) or other securities
convertible into or exchangeable for Common Stock.
(iii) "Options" shall mean rights, options, or warrants
-------
to subscribe for, purchase or otherwise acquire either Common Stock or
Convertible Securities.
(c) Deemed Issue of Additional Shares of Common Stock. In the
-------------------------------------------------
event the Company at any time or from time to time after the Original Issue Date
shall issue any Options or Convertible Securities or shall fix a record date for
the determination of holders of any class of securities then entitled to receive
any such Options or Convertible Securities (to the extent not excluded from the
definition of Additional Shares of Common Stock), then the maximum number of
shares (as set forth in the instrument relating thereto without regard to any
provisions contained therein designed to protect against dilution) of Common
Stock issuable upon the exercise of such Options or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common Stock issued as of
the time of such issue or, in case such a record date shall have been fixed, as
of the close of business on such record date, provided further that in any such
case in which Additional Shares of Common Stock are deemed to be issued:
(i) no further adjustments in the Exercise Price shall
be made upon the subsequent issue of Convertible Securities or shares of Common
Stock upon the exercise of such Options or conversion or exchange of such
Convertible Securities;
7
(ii) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase in the
consideration payable to the Company, or decrease in the number of shares of
Common Stock issuable, upon the exercise, conversion or exchange thereof, the
Exercise Price computed upon the original issue thereof (or upon the occurrence
of a record date with respect thereto), and any subsequent adjustments based
thereon, shall, upon any such increase or decrease becoming effective, be
recomputed to reflect such increase or decrease insofar as it affects such
Options or the rights of conversion or exchange under such Convertible
Securities (provided, however, that no such adjustment of the Exercise Price
shall affect Common Stock previously issued upon exercise of this Warrant, in
whole or in part, as the case may be);
(iii) upon the expiration or termination of any such Options or
any conversion or exchange rights related to such Convertible Securities, the
Exercise Price, to the extent in any way affected by or computed using such
Options or rights related to such Convertible Securities, shall be recomputed to
reflect the issuance of only the number of shares of Common Stock (and Options
or Convertible Securities which remain in effect) actually issued upon the
exercise of such Options or rights related to such Convertible Securities; and
(iv) no readjustment pursuant to clause (ii) or (iii) above
shall have the effect of increasing the Exercise Price to an amount which
exceeds the lower of (A) the Exercise Price on the original adjustment date, or
(B) the Exercise Price that would have resulted from any issuance of Additional
Shares of Common Stock between the original adjustment date and such
readjustment date.
(d) Determination of Consideration. For purposes of this Section 2.1,
------------------------------
the consideration received by the Company for the issue of any Additional Shares
of Common Stock shall be computed as follows:
(i) Cash and Property: Such consideration shall:
-----------------
A. insofar as it consists of cash, be computed at the
aggregate amount of cash received by the Company;
B. insofar as it consists of property other than cash, be
computed at the fair value thereof at the time of such issue, as determined in
good faith by the Board of Directors; and
C. in the event Additional Shares of Common Stock are
issued together with other shares or securities or other assets of the Company
for consideration which covers both, be the proportion of such consideration so
received, computed as provided in clauses (A) and (B) above, as determined in
good faith by the Board of Directors.
(ii) Options and Convertible Securities. The consideration per
----------------------------------
share received by the Company for Additional Shares of Common Stock deemed to
have been issued pursuant to Section 2.1(c), relating to Options and Convertible
Securities, shall be determined by dividing:
8
A. the total amount, if any, received or receivable by the
Company as consideration for the issue of such Options or Convertible
Securities, plus the minimum aggregate amount of additional consideration (as
set forth in the instruments relating thereto, without regard to any provision
contained therein designed to protect against dilution) payable to the Company
upon the exercise of such Options or the conversion or exchange of such
Convertible Securities, or in the case of Options for Convertible Securities,
the exercise of such Options for Convertible Securities and the conversion or
exchange of such Convertible Securities, by
B. the maximum number of shares of Common Stock (as set
forth in the instruments relating thereto, without regard to any provision
contained therein designed to protect against the dilution) issuable upon the
exercise of such Options or conversion or exchange of such Convertible
Securities, or in the case of Options for Convertible Securities, the exercise
of such Options for Convertible Securities and the conversion or exchange of
such Convertible Securities.
2.2 Adjustment to Exercise Price for Subdivisions or Combinations of
----------------------------------------------------------------
Common Stock. In case outstanding Common Stock shall be subdivided (by a stock
------------
split, stock dividend, recapitalization or otherwise) into a greater number of
shares of Common Stock, the Exercise Price in effect at the opening of business
on the day following the day upon which such subdivision becomes effective shall
be proportionately reduced, and, conversely, in case outstanding Common Stock
shall each be combined (by reverse stock split, recapitalization or otherwise)
into a smaller number of shares of Common Stock, the Exercise Price in effect at
the opening of business on the day following the day upon which such combination
becomes effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision or
combination becomes effective.
2.3 Adjustment to Exercise Price for Distributions of Property. In case
----------------------------------------------------------
the Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock evidences of its indebtedness, shares of any class of capital
stock, or other property (including securities, but excluding (i) any dividend
or distribution paid exclusively in cash, (ii) any dividend or distribution of
Additional Shares of Common Stock referred to in Section 2.1, (iii) any stock
dividend to which Section 2.2 applies, and (iv) any merger or consolidation to
which Section 2.14 applies), the Exercise Price shall be adjusted so that the
same shall equal the rate determined by multiplying the Exercise Price in effect
immediately prior to the close of business on the date fixed for determination
of shareholders entitled to receive the dividend or distribution (a
"Determination Date") for such distribution by a fraction of which (A) the
numerator shall be the Current Market Price per share of Common Stock on such
Determination Date less the then current market value (as determined in good
faith by the Board of Directors of the Company) of the portion of the assets,
shares or evidences of indebtedness so distributed applicable to one share of
Common Stock and (B) the denominator shall be the Current Market Price per share
of the Common Stock, such adjustment to become effective immediately prior to
the opening of business on the day following such Determination Date. If the
Board of Directors determines the current market value of any distribution for
purposes of this Section 2.3 by reference to the actual or when issued trading
market for any securities constituting such distribution, it must in
9
doing so consider the prices in such market over the same period used in
computing the Current Market Price per share.
2.4 Adjustment to Exercise Price for Distributions of Cash. In case the
------------------------------------------------------
Company shall, by dividend or otherwise, make a distribution of cash to all
holders of Common Stock other than pursuant to Section 2.3 or 2.14 (a "Cash
Distribution"), then, and in each such case, immediately after the close of
business on the Determination Date for such Cash Distribution, the Exercise
Price shall be adjusted so that the same shall equal the rate determined by
multiplying the Exercise Price in effect immediately prior to the close of
business on such Determination Date by a fraction (i) the numerator of which
shall be equal to the Current Market Price per share of the Common Stock on such
Determination Date less an amount equal to the quotient of (A) the amount of
such Cash Distribution divided by (B) the number of shares of Common Stock
outstanding on such Determination Date and (ii) the denominator of which shall
be equal to the Current Market Price per share of the Common Stock on such
Determination Date.
2.5 Adjustment to Exercise Price for Excess Purchase Payment. In case
--------------------------------------------------------
the Company or any subsidiary shall make an Excess Purchase Payment, then, and
in each such case, immediately prior to the opening of business on the day after
the tender offer in respect of which such Excess Purchase Payment is to be made
expires, the Exercise Price shall be adjusted so that the same shall equal the
rate determined by multiplying the Exercise Price in effect immediately prior to
the close of business on the Determination Date for such tender offer by a
fraction (i) the numerator of which shall be equal to the Current Market Price
per share of Common Stock on such Determination Date less an amount equal to the
quotient of (A) the Excess Purchase Payment divided by (B) the number of shares
of Common Stock outstanding (including any tendered shares) as of the
Determination Date less the number of all Common Stock validly tendered and not
withdrawn as of the Determination Date and (ii) the denominator of which shall
be equal to the Current Market Price per share of Common Stock as of such
Determination Date. For purposes of this Section 2.5, "Excess Purchase Payment"
means the product of (A) the excess, if any, of (i) the amount of cash plus the
current market value (as determined in good faith by the Company's Board of
Directors) of any non-cash consideration required to be paid with respect to one
share of Common Stock acquired or to be acquired in a tender offer made by the
Company or any subsidiary of the Company for all or any portion of the Common
Stock over (ii) the Current Market Price per share as of the last time that
tenders could have been made pursuant to such tender offer and (B) the number of
shares of Common Stock validly tendered and not withdrawn as of the
Determination Date in respect of such tender offer.
2.6 Adjustment to Exercise Price for Reclassification of Common Stock.
------------------------------------------------------------------
The partial reclassification of Common Stock into securities other than Common
Stock (other than any reclassification upon a consolidation or merger to which
Section 2.14 applies) shall be deemed to involve (i) a distribution of such
securities other than Common Stock to all holders of Common Stock (and the
effective date of such reclassification shall be deemed to be the Determination
Date), and (ii) a subdivision or combination, as the case may be, of the number
of shares of Common Stock outstanding immediately prior to such reclassification
into the number of shares of Common Stock outstanding immediately thereafter
(and the effective date of such reclassification shall be deemed to be "the day
upon which such subdivision becomes effective" or "the day upon which such
combination becomes effective", as the case may be, and "the day
10
upon which such subdivision or combination becomes effective" within the meaning
of Section 2.2).
2.7 No Adjustments and Rounding. No adjustment in the Exercise Price
---------------------------
shall be required unless such adjustment (plus any adjustments not previously
made by reason of this Section 2.7) would require an increase or decrease of at
least one percent in such price; provided, however, that any adjustments which
by reason of this Section 2.7 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Warrant shall be made to the nearest cent.
2.8 Adjustment for Tax Treatment. The Company may make such decreases
----------------------------
in the Exercise Price, for the remaining term of the Warrant or any shorter
term, in addition to those required by Section 2 as it considers to be advisable
in order to avoid or diminish any income tax to any holders of Common Stock
resulting from any dividend or distribution of stock or issuance of rights or
warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes.
2.9 Certificate of Exercise Price Adjustment. Whenever the Exercise
----------------------------------------
Price is adjusted as provided in Section 2, the Company shall compute the
adjusted Exercise Price in accordance with Section 2 and shall prepare a
certificate signed by the chief financial officer of the Company setting forth
the adjusted Exercise Price and showing in reasonable detail the facts upon
which such adjustment is based, and shall promptly deliver such certificate to
the holder of this Warrant. As a condition to the effectiveness of any such
adjustment, the Company may require the Holder to pay, in cash, the amount of
legally applicable withholding tax, if any, which may be due as a result of such
adjustment.
2.10 Notice of Events. In case:
-----------------
(a) the Company shall declare a dividend or other distribution on
its Common Stock payable (i) otherwise than exclusively in cash or (ii)
exclusively in cash in an amount that would require any adjustment pursuant to
this Section 2; or
(b) the Company shall authorize the granting to the holders of
its Common Stock of rights, options or warrants to subscribe for or purchase any
shares of capital stock of any class or of any other rights; or
(c) of any reclassification of the Common Stock, or of any
consolidation, merger or share exchange to which the Company is a party and for
which approval of any shareholders of the Company is required, or of the
conveyance, sale, transfer or lease of all or substantially all of the assets of
the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
(e) the Company or any subsidiary shall commence a tender offer
for all or a portion of the Company's outstanding Common Stock (or shall amend
any such tender offer); or
11
(f) any other transaction as a result of which the Company's
Common Stock would not be listed on the Nasdaq National Market or any other
national securities exchange,
then the Company shall cause to be delivered to the holder of this Warrant, at
least 20 days (or 10 days in any case specified in clause (a) or (b) above)
prior to the applicable record, expiration and effective date hereinafter
specified, a notice stating (1) the date on which a record is to be taken for
the purpose of such dividend, distribution, rights, options or warrants, or, if
a record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights, options or
warrants are to be determined, (2) the date on which the right to make tenders
under such tender offer expires and (3) the date on which such reclassification,
consolidation, merger, conveyance, transfer, sale, lease, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, conveyance, transfer, sale,
lease, dissolution, liquidation or winding up. Neither the failure to give such
notice nor any defect therein shall affect the legality or validity of the
proceedings described in paragraphs (a) through (e) of this Section 2.10.
2.11 Stock Fully Paid; Reservation of Common Stock. All shares of Common
---------------------------------------------
Stock which may be issued upon the exercise of this Warrant shall, upon
issuance, be fully paid and non-assessable. The Company shall at all times
reserve and keep available, free from preemptive rights, out of its authorized
but unissued Common Stock, for the purpose of effecting the exercise of the
Warrant, the full number of shares of Common Stock then issuable upon the
exercise of this Warrant.
2.12 Taxes. The Company will pay any and all taxes and duties that may
-----
be payable in respect of the issue or delivery of Common Stock on exercise of
the Warrant, subject to receipt of amounts from the Holder in respect of legally
applicable withholding taxes, if any, and except for taxes based on income or
gain of such Holder. The Company shall not, however, be required to pay any tax
or duty which may be payable in respect of any transfer involved in the issue
and delivery of Common Stock in a name other than that of the holder of this
Warrant (or a third party as may be designated by the holder), and no such issue
or delivery shall be made unless and until the person requesting such issue has
paid to the Company the amount of any such tax or duty, or has established to
the satisfaction of the Company that such tax or duty has been paid.
2.13 Due Authorization and Valid Issuance. The Company agrees that all
------------------------------------
Common Stock which may be delivered upon exercise of the Warrant, upon such
delivery, will have been duly authorized and validly issued and will be fully
paid and nonassessable (and shall be issued out of the Company's authorized but
unissued Common Stock) and, except as provided in Section 2.12, the Company will
pay all taxes, liens and charges with respect to the issue thereof.
2.14 Consolidation, Merger, Etc. In case of any consolidation of the
--------------------------
Company with any other person, any merger of the Company into another person or
of another person into the Company (other than a merger which does not result in
any reclassification, conversion,
12
exchange or cancellation of outstanding Common Stock of the Company) or any
conveyance, sale, transfer or lease of all or substantially all of the
properties and assets of the Company, the person formed by such consolidation or
resulting from such merger or which acquires such properties and assets, as the
case may be (except if such transaction involves a sale of all or substantially
all of the assets of the Company solely for cash, and the Holder has received as
of the effective date of such transaction the full amount of consideration due
to a holder of the number of shares of Common Stock issuable upon exercise of
this Warrant, assuming such exercise in full prior to the applicable effective
date), shall execute and deliver to the holder of this Warrant a supplemental
agreement providing that such holder have the right thereafter, during the
period this Warrant shall be exercisable as specified in Section 1.1, to
exercise this Warrant for the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance, sale, transfer
or lease (including any Common Stock retainable) by a holder of the number of
shares of Common Stock of the Company for which this Warrant might have been
exercised immediately prior to such consolidation, merger, conveyance, sale,
transfer or lease, assuming such holder of Common Stock of the Company (i) is
not a person with which the Company consolidated, into which the Company merged
or which merged into the Company or to which such conveyance, sale, transfer or
lease was made, as the case may be (a "Constituent person"), or an affiliate of
a Constituent person and (ii) failed to exercise his rights of election, if any,
as to the kind or amount of securities, cash and other property receivable upon
such consolidation, merger, conveyance, sale, transfer or lease (provided that
if the kind or amount of securities, cash and other property receivable upon
such consolidation, merger, conveyance, sale, transfer, or lease is not the same
for each share of Common Stock of the Company held immediately prior to such
consolidation, merger, conveyance, sale, transfer or lease by others than a
Constituent person or an affiliate thereof and in respect of which such rights
of election shall not have been exercised ("Non-Electing Share"), then for the
purpose of this Section 2.14 the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance, sale, transfer
or lease by the holders of each Non-Electing Share shall be deemed to be the
kind and amount so receivable per share by a plurality of the Non-Electing
Shares). Such supplemental agreement shall provide for adjustments which, for
events subsequent to the effective date of such supplemental agreement, shall be
as nearly equivalent as may be practicable to the adjustments to the Exercise
Price provided for in this Section 2. The above provisions of this Section 2.14
shall similarly apply to successive consolidations, mergers, conveyances, sales,
transfers or leases. In this paragraph, "securities of the kind receivable" upon
such consolidation, merger, conveyance, transfer, sale or lease by a holder of
Common Stock means securities that, among other things, are registered and
transferable under the Securities Act, and listed and approved for quotation in
all securities markets, in each case to the same extent as such securities so
receivable by a holder of Common Stock. If this Section 2.14 applies to any
event or occurrence, then the provisions of Sections 2.1 to 2.8 shall not apply.
2.15 Registration and Listing. The Company (a) will use its best efforts
------------------------
to effect all registrations with, and obtain all approvals by, all governmental
authorities that may be necessary under any United States Federal or state law
(including the Securities Act, the Securities Exchange Act of 1934 and state
securities and Blue Sky laws) for the Common Stock issuable upon exercise of
this Warrant to be lawfully issued and delivered as provided herein, and
thereafter publicly traded (if permissible under the Securities Act) and
qualified or listed as contemplated by clause (a) (it being understood that the
Company shall not be required to
13
register the Common Stock issuable on exercise hereof under the Securities Act
except pursuant to the Registration Rights Agreement dated as of the date hereof
between the Company and the initial holder of this Warrant); and (b) will use
its best efforts to list the Common Stock required to be issued and delivered
upon exercise of this Warrant, prior to such issuance or delivery, on each
national securities exchange on which outstanding Common Stock is listed or
quoted at the time of such delivery, or if the Common Stock is not then listed
on any securities exchange, to qualify the Common Stock for quotation on the
Nasdaq National Market or such other inter-dealer quotation system, if any, on
which the Common Stock is then quoted.
3. Miscellaneous.
-------------
3.1 Successors and Assigns. The terms of this Warrant shall be binding
----------------------
upon and shall inure to the benefit of any successors or assigns of the Company
and of the Holder and of the Common Stock issued or issuable upon the exercise
hereof, and all of the obligations of the Company relating to the Common Stock
issuable upon exercise of this Warrant shall survive the exercise of this
Warrant.
3.2 Holder Not Deemed a Stockholder. No Holder, as such, shall be
-------------------------------
entitled to vote or receive dividends (except as expressly set forth herein) or
be deemed to be a stockholder of the Company for any purpose, nor shall anything
contained in this Warrant be construed to confer upon the Holder, as such, any
rights of a stockholder of the Company or any right to vote, give or withhold
consent to any corporate action, receive notice of meetings, receive dividends
or subscription rights, or otherwise.
3.3 No Fractional Shares. No fractional share shall be issued upon
---------------------
exercise of this Warrant. The Company shall, in lieu of issuing any fractional
share, make a cash payment therefor on the basis of the Exercise Price.
3.4 Replacement Warrant. Upon receipt of evidence reasonably
-------------------
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant of like data and terms.
3.5 Saturdays, Sunday and Holidays. If the last or appointed day for the
------------------------------
taking of any action or the expiration of any right required or granted herein
shall be a Saturday or Sunday or shall be a legal holiday, then such action may
be taken or such right may be exercised, except as to the purchase price, on the
next succeeding day not a legal holiday.
3.6 Governing Law. This Warrant shall be governed by the internal laws
--------------
of the State of New York applicable to contracts entered into and to be
performed wholly within such State.
3.7 Receipt as Acceptance. Receipt of this Warrant by the Holder shall
---------------------
constitute acceptance of and agreement to the foregoing terms and conditions.
14
3.8 Amendment and Waiver. Any term of this Warrant may be amended and
--------------------
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively) with the
written consent of the Company and the Holder.
3.9 Notice. Unless otherwise provided, any notice required or permitted
------
under this Warrant shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified, two (2) business days
after it is transmitted by facsimile or deposit with an overnight courier
service or five (5) business days after deposit with the United States Post
Office, by registered or certified mail, postage prepaid and addressed to the
party to be notified at the address indicated for such party on the signature
page hereof, or at such other address as such party may designate by ten (10)
days' advance written notice to the other parties.
[Signature page follows]
15
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its duly authorized officer.
ARTESYN TECHNOLOGIES, INC.
By:
--------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Signature Page to Warrant
SUBSCRIPTION
------------
Artesyn Technologies, Inc.
Attention: Corporate Secretary
1. The undersigned hereby elects to purchase,
pursuant to the provisions of the Warrant to Purchase Shares of Common Stock
issued by Artesyn Technologies, Inc. and held by the undersigned, shares of
Common Stock of Artesyn Technologies, Inc. Payment of the Exercise Price per
share required under such Warrant accompanies this Subscription.
1. The undersigned hereby elects to receive shares
of Common Stock equal to the value of this Warrant in the manner specified in
Section 1.3 of the Warrant.
[STRIKE PARAGRAPH ABOVE THAT DOES NOT APPLY]
2. The undersigned hereby represents and warrants
that the undersigned is acquiring such shares for its own account for investment
purposes only, and not for resale or with a view to distribution of such shares
or any part thereof.
WARRANTHOLDER:
By:
Address:
------------------------------------
--------------------------------------------
Date:
---------------------------------------
Name in which shares should be registered:
--------------------------------------------
