WARRANT
To Purchase Shares of Common Stock,
par value $.01 per share, of
EFTC Corporation
March 30, 2000
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES OR BLUE SKY LAWS
OF ANY STATE. THEY MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF COMPLIANCE
WITH THE REGISTRATION REQUIREMENTS OF SAID ACT AND WITH SUCH LAWS OR PURSUANT TO
AN EXEMPTION THEREFROM.
WARRANT
To Purchase Shares of Common Stock, par value $.01 per share, of
EFTC Corporation
March 30, 2000
THIS IS TO CERTIFY that, for value received, THAYER-BLUM
FUNDING, L.L.C., or registered assigns ("Holder"), is entitled upon the due
exercise hereof at any time during the Exercise Period (defined below) to
purchase 3,093,154 shares of Common Stock, par value $.01 per share, of EFTC
Corporation, a Colorado corporation (the "Company"), at an Exercise Price
(defined below) of $.01 per share (such Exercise Price and the number of shares
of Common Stock purchasable hereunder being subject to adjustment as provided
herein), and to exercise the other rights, powers and privileges hereinafter
provided, all on the terms and subject to the conditions hereinafter set forth
(the "Warrant"). This Warrant is being issued in connection with a Securities
Purchase Agreement, dated the date hereof, by and between the Company and
Thayer-BLUM Funding, L.L.C. (the "Securities Purchase Agreement").
1. Definitions.
1.1 Definitions of Certain Terms. The following terms, whenever
used and capitalized in this Warrant, shall, unless the context otherwise
requires, have the following meanings:
"Assignment" shall mean the form of Assignment appearing at the
end of this Warrant.
"Business Day" means any day other than a Saturday or Sunday or a
day on which banking institutions in the City of New York are authorized or
required by law or executive order to remain closed.
"Common Stock" shall mean the Common Stock, par value $.01 per
share, of the Company as constituted on the date hereof and any stock into which
such Common Stock shall have been changed or any stock resulting from any
reclassification of such Common Stock.
"Convertible Securities" shall mean evidences of indebtedness,
shares (including, without limitation, preferred shares) of stock or other
securities which are convertible into or exchangeable for, with or without
payment of additional consideration, shares of Common Stock, either immediately
or upon the arrival of a specified date or the happening of a specified event.
"Exchangeable Note" shall mean the Company's 15% Senior
Subordinated Exchangeable Notes due June 2006.
"Exercise Period" shall mean the period (i) commencing on the
earlier of (A) September 1, 2000 and (B) the date on which a Failure to Approve
the Transactions shall occur and (ii) ending on the earlier of (A) the date on
which a Successful Tender Offer (as such term is defined in the Securities
Purchase Agreement) is consummated, or (B) the close of business on June 30,
2010.
"Exercise Price" shall mean the price per share of Common Stock
set forth in the preamble to this Warrant, as such price may be adjusted
pursuant to Section 4.
"Failure to Approve the Transactions" shall mean that the holders
of the Common Stock of the Company do not vote to approve the Transactions at
the Shareholders Meeting (as such term is defined in the Purchase Agreement).
"Notice of Exercise" shall mean the form of Notice of Exercise
appearing at the end of this Warrant.
"Original Issue Date" shall mean March 30, 2000.
"Other Securities" shall mean with reference to the exercise
privilege of the holders of the Warrants, any shares (other than Common Stock)
and any other securities (including, without limitation, preferred shares) of
the Company or of any other Person which the holders of this Warrant at any time
shall be entitled to receive, or shall have received, upon the exercise or
partial exercise of the Warrant, in lieu of or in addition to Common Stock, or
which at any time shall be issuable or shall have been issued in exchange for or
in replacement of Common Stock (or Other Securities) pursuant to the terms of
the Warrant or otherwise.
"Person" shall mean any individual, firm, corporation,
partnership, limited liability company, incorporated or unincorporated
association, joint venture, joint stock company, governmental agency or
instrumentality or other entity of any kind.
"Securities Purchase Agreement" shall have the meaning ascribed
thereto in the preamble hereto, as amended from time to time.
"Senior Debt" means (i) all indebtedness outstanding at any time
under the Credit Agreement, and all hedging obligations and bank products with
respect thereto, (ii) any replacement or refinancing of the Credit Agreement
which provides for borrowings by the Company up to $55,000,000 in aggregate
principal amount, and (iii) all obligations with respect to any of the
foregoing. Notwithstanding anything to the contrary in the foregoing, Senior
Debt shall not include (x) any indebtedness of the Company to any of its
subsidiaries or other affiliates, or (y) any indebtedness incurred for the
purchase of goods or materials or for services obtained in the ordinary course
of business (other than with the proceeds of revolving credit borrowings
permitted hereby).
"Shares" of any Person shall include any and all shares of
capital stock of such Person of any class or other shares, interests,
participations or other equivalents (however designated) in the capital of such
Person.
"Stock Purchase Rights" shall mean any warrants, options or other
rights to subscribe for, purchase or otherwise acquire any shares of Common
Stock or any Convertible Securities.
"This Warrant" shall mean, and the words "herein", "hereof",
"hereunder" and words of similar import shall refer to, this instrument as it
may from time to time be amended of supplemented.
"Transactions" shall have the meaning ascribed thereto in the
Securities Purchase Agreement.
"Warrant Register" shall have the meaning specified in Section
3.1.
"Warrant Shares" shall mean the shares of Common Stock (and/or
Other Securities) issued or issuable, as the case may be, from time to time upon
exercise of the Warrant, including, without limitation, any shares of Common
Stock (and/or Other Securities) issuable with respect thereto by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, other reorganization or otherwise.
2. Exercise of Warrant.
2.1 Right to Exercise; Notice. On the terms and subject to the
conditions of this Section 2, the holder hereof shall have the right, at its
option, to exercise this Warrant in whole or in part at any time or from time to
time during the Exercise Period, all as more fully specified below; provided
that a partial exercise of this Warrant for less than the entire remaining
amount of Warrant Shares issuable under this Warrant shall be made only for a
whole number of shares.
2.2 Manner of Exercise; Issuance of Common Stock. To exercise this
Warrant, the holder hereof shall deliver to the Company (a) a Notice of Exercise
duly executed by the holder hereof specifying (i) the number of Warrant Shares
to be purchased (and the date of exercise (the "Exercise Date") which shall be
no more than 30 Business Days and no less than 25 Business Days following the
date of receipt by the Company of the Notice of Exercise), and (ii) the method
by which the holder shall pay the amount equal to the aggregate Exercise Price
for all Warrant Shares as to which this Warrant is then being exercised, and (b)
this Warrant. For the exercise of this Warrant to be effective, on the Exercise
Date, payment of the Exercise Price shall be made, at the option of the holder
hereof, (w) by wire transfer of funds to an account in a bank located in the
United States designated by the Company for such purpose, (x) by certified or
official bank check payable to the order of the Company or (y) by any
combination of such methods. Any exercise may be rescinded by notice to the
Company no later than two (2) Business Days prior to the Exercise Date.
Upon receipt of the items referred to in this Section 2.2, including
receipt of the aggregate Exercise Price for all Warrant Shares as to which this
Warrant is then being exercised, the Company shall, on the Exercise Date, cause
to be issued and delivered to the holder hereof (or its nominee) or the
transferee designated in the Notice of Exercise, a certificate or certificates
representing the Warrant Shares equal in the aggregate to the number of Warrant
Shares specified in the Notice of Exercise (but not exceeding the maximum number
of shares issuable upon exercise of this Warrant). Such certificates shall be
registered in the name of the holder hereof (or its nominee) or in the name of
such transferee, as the case may be.
If this Warrant is exercised in part, the Company shall, at the time of
delivery of such certificate or certificates, unless the Exercise Period expired
prior to such exercise, issue and deliver to the holder hereof or the transferee
so designated in the Notice of Exercise, a new Warrant evidencing the right of
the holder hereof or such transferee to purchase at the Exercise Price then in
effect the aggregate number of Warrant Shares for which this Warrant shall not
have been exercised, and this Warrant shall be canceled.
2.3 Net Issue Exercise. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of Common Stock is greater than
the Exercise Price for one share of Common Stock (at the date of calculation, as
set forth below), in lieu of exercising this Warrant for cash, the holder may
elect to receive shares of Common Stock equal to the value (as determined below)
of this Warrant (or the portion thereof being canceled), computed using the
following formula:
WS = WCS (FMV-EP)
FMV
WHERE:
WS equals the number of Warrant Shares to be issued to the
Holder;
WCS equals the number of shares of Common Stock
purchasable under the Warrant or, if only a portion
of the Warrant is being exercised, the portion of the
Warrant being canceled (at the date of such
calculation);
FMV equals the Fair Market Value (as defined below) of one share
of Common Stock (at the date of such calculation); and EP
equals the per share Exercise Price (as adjusted to the date
of such calculation) of the Warrant.
As used in this Section, the term "Fair Market Value" of each Warrant
Share as of any date shall be the highest bid price posted in respect of the
Common Stock in the Nasdaq Stock Market's automated dealer quotation system at
the close of trading on the Business Day prior to such exercise, or, if the
Common Stock shall not then be so quoted, Fair Market Value shall be determined
as follows: (A) if the parties hereto can agree on the Fair Market Value, such
agreed upon value shall constitute the Fair Market Value; (B) if the parties
cannot reach an agreement as to the Fair Market Value within five (5) Business
Days from the onset of negotiations, then such parties shall jointly appoint an
appraiser to determine the Fair Market Value; (C) if the parties cannot agree
upon the selection of an appraiser within five (5) Business Days after such five
(5) day period, then each party shall deliver to the other a list of three (3)
appraisers on or before the third (3rd) Business Day immediately following the
expiration of said five (5) day period, each party shall select one appraiser
from the other party's list and notify such other party of its selection on or
before the fifth (5th) Business Day immediately following the expiration of the
three (3) day period; (D) if either party does not deliver to the other party a
list of appraisers within the three (3) day period of deliver its selection of
the appraiser from the other party's list within the five (5) day period, then
the first appraiser listed on the other party's list shall be deemed to have
been jointly selected to determine the Fair Market Value; (E) if both parties
timely select an appraiser from the other party's list, then the two (2)
appraisers so selected shall jointly select a third (3rd) appraiser, which third
(3rd) appraiser shall independently calculate the Fair Market Value made in
accordance with the terms hereinabove set forth shall be final and binding on
the parties hereto.
Such conversion shall be effective as of the date of the Company's
receipt of the applicable Exercise Notice, and, upon such conversion, the holder
hereof shall surrender to the Company this Warrant in exchange for certification
evidencing the Warrant Shares issuable upon such conversion and, in the case of
a conversion of this Warrant in part, a new Warrant certificate evidencing the
portion of this Warrant not so converted.
2.4 Fractional Shares. The Company shall not issue fractional Warrant
Shares or scrip representing fractional Warrant Shares upon any exercise of this
Warrant. As to any fractional Warrant Shares which the holder hereof would
otherwise be entitled to purchase from the Company upon such exercise, the
Company shall issue one share which the holder hereof shall be entitled to
purchase from the Company at a price equal to the Exercise Price calculated as
of the date of the Notice of Exercise. Payment of such amount shall be made in
any manner permitted under Section 2.2 at the time of delivery of any
certificate or certificates deliverable upon such exercise.
2.5 Continued Validity. A holder of Warrant Shares issued upon the
exercise of this Warrant, in whole or in part, shall continue to be entitled to
all rights to which the holder of this Warrant is entitled pursuant to the
provisions of this Warrant, except such rights as by their terms apply solely to
the holder of a Warrant.
2.6 Cancellation. This Warrant shall be deemed cancelled immediately
upon the consummation of a Successful Tender Offer without any action taken by
the Company with respect thereto.
2.7 Cash Payment. Upon any exercise of this Warrant which would result
in an issuance of a number of shares which, without shareholder approval, would
result in the Common Stock being delisted under the requirements of the Nasdaq
Stock Market, the Company shall, in lieu of issuing such shares above the amount
not requiring shareholder approval (the "Excess Share Number"), pay to Holder an
amount equal to (x) the Trading Price of Common Stock times the Excess Share
Number minus (y) the Exercise Price times the Excess Share Number (the "Excess
Amount"); provided, however, that if any such payment shall at the time of
exercise be prohibited under the terms of the Senior Debt, the Company shall
issue a note substantially in the form of the Exchangeable Notes with a
principal amount equal to the Excess Amount and a term ending June 30, 2006.
3. Registration, Transfer and Exchange; Legends.
3.1 Maintenance of Registration Books. The Company shall keep at its
principal executive office or such other address (including that of the
Company's transfer agent) as the Company shall notify the holder hereof in
writing, a register (the "Warrant Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration, transfer and exchange of the Warrants. The Company shall not at
any time close the Warrant Register so as to result in preventing or delaying
the exercise or transfer of this Warrant.
3.2 Transfer and Exchange. Upon surrender for registration of transfer
of this Warrant at such office, the Company shall execute and deliver in the
name of the designated transferee or transferees one or more new Warrants
representing the right to purchase at the Exercise Price then in effect a like
aggregate number of Warrant Shares. At the option of the holder hereof, this
Warrant may be exchanged for other Warrants representing the right to purchase a
like aggregate number of Warrant Shares upon surrender of this Warrant at such
office. Whenever this Warrant is so surrendered for exchange, the Company shall
execute and deliver the Warrants which the holder making the exchange is
entitled to receive. Every Warrant presented or surrendered for registration of
transfer or exchange shall be accompanied by an Assignment duly executed by the
holder thereof or its attorney duly authorized in writing. All Warrants issued
upon any registration of transfer or exchange of other Warrants shall be the
valid obligations of the Company, evidencing the same rights, and entitled to
the same benefits, as the Warrants surrendered upon such registration of
transfer or exchange.
3.3 Replacement. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant and
(a) in the case of any such loss, theft or destruction, upon delivery of
indemnity reasonably satisfactory to the Company in form and amount or (b) in
the case of any such mutilation, upon surrender of this Warrant for cancellation
at the office of the Company at which the Warrant Register is kept, the Company,
at its expense, will execute and deliver, in lieu thereof, a new Warrant
representing the right to purchase at the Exercise Price then in effect a like
aggregate number of Warrant Shares. The affidavit of any institutional holder of
this Warrant certifying as to the occurrence of any loss, theft, destruction or
mutilation of this Warrant shall constitute evidence satisfactory to the Company
for the purpose of this Section 3.3.
3.4 Ownership. The Company and any agent of the Company may treat the
Person in whose name this Warrant is registered on the Warrant Register as the
owner and holder hereof for all purposes, notwithstanding any notice to the
contrary, except that, if and when this Warrant is properly assigned in blank,
the Company may (but shall not be obligated to) treat the bearer hereof as the
owner of this Warrant for all purposes, notwithstanding any notice to the
contrary. This Warrant, if properly assigned, may be exercised by a new holder
without first having a new Warrant issued.
4. Anti-Dilution Provisions.
4.1 Adjustment of Number of Shares Purchasable. Upon any adjustment of
the Exercise Price as provided in Section 4.2, the holder hereof shall
thereafter be entitled to purchase, at the Exercise Price resulting from such
adjustment, the number of shares of Common Stock (calculated to the nearest
1/100th of a share) obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of shares of Common Stock
purchasable hereunder immediately prior to such adjustment and dividing the
product thereof by the Exercise Price resulting from such adjustment.
4.2 Adjustment of Exercise Price. The Exercise Price shall be
subject to adjustment from time to time as set forth in this Section 4.2.
(a) Stock Dividends, Subdivisions and Combinations. If the
Company at any time or from time to time subsequent to the date hereof:
(i) pays a dividend upon, or makes any distribution in
respect of, any of its Common Stock, payable in shares of Common Stock,
Convertible Securities or Stock Purchase Rights, or
(ii) subdivides its outstanding shares of Common Stock into a
larger number of shares of Common Stock, or
(iii)combines its outstanding shares of Common Stock into a
smaller number of shares of Common Stock,
then the Exercise Price in effect immediately prior to such action
shall be proportionately adjusted so that the holder of this Warrant shall, upon
subsequent exercise of this Warrant, receive the aggregate number and kind of
shares of capital stock and/or other securities of the Company which such holder
would have owned immediately following such action if such Warrant had been
exercised immediately prior to such action. The adjustment shall become
effective immediately after the record date in the case of a dividend or
distribution and immediately after the effective date in the case of a
subdivision, combination or reclassification.
If after an adjustment a holder of this Warrant upon exercise
of it may receive shares of two or more classes of capital stock or other
securities of the Company, the Company shall determine the allocation of the
adjusted Exercise Price between the classes of capital stock. After such
allocation, the exercise privilege and the Exercise Price of each class of
capital stock shall thereafter be subject to adjustment on terms comparable to
those applicable to Common Stock in this Section.
(b) Reorganization, Reclassification or Recapitalization of the
Company. If the Company at any time or from time to time subsequent to the date
hereof shall effect (i) any reorganization or reclassification or
recapitalization of the capital stock of the Company, (ii) any consolidation or
merger of the Company with or into another Person, or (iii) any other
transaction (or any other event shall occur) as a result of which holders of
Common Stock become entitled to receive any shares of stock or other securities
and/or property (including, without limitation, cash, but excluding any cash
dividend that is paid out of the earnings or surplus of the Company legally
available therefor) in a distribution with respect to or in exchange for the
Common Stock of the Company, there shall thereafter be deliverable upon the
exercise of this Warrant or any portion thereof (in lieu of or in addition to
the Warrant Shares theretofore deliverable, as appropriate) the number of shares
of stock or other securities and/or the amount of property (including, without
limitation, cash) to which the holder of the number of Warrant Shares which
would otherwise have been deliverable upon the exercise of this Warrant or any
portion thereof at the time would have been entitled upon such reorganization or
reclassification or recapitalization of capital stock, consolidation, merger,
sale, transfer, disposition or other transaction or upon the occurrence of such
other event, and at the same aggregate Exercise Price.
Prior to the consummation of any transaction or event
described in the preceding sentence, the Company shall make equitable, written
adjustments in the application of the provisions herein set forth satisfactory
to the holder or holders of Warrants at the time outstanding so that the
provisions set forth herein shall thereafter be applicable, as nearly as
possible, in relation to any shares of stock or other securities or other
property thereafter deliverable upon exercise of the Warrants. Any such
adjustment shall be made by and set forth in a supplemental agreement of the
Company and/or the successor entity, as applicable, for the benefit of the
holder or holders of the Warrants at the time outstanding, which agreement shall
bind each such entity.
(c) Exercise Price Adjustments for Certain Dilutive Issuances.
The Exercise Price shall be subject to adjustment from time to time as follows:
(i)(A) If the Company shall issue, after the date upon
which the Warrants were first issued (the "Warrant Issue
Date"), any Additional Stock (as defined below) without
consideration or for consideration per share less than
$5.00, subject to adjustment under Section 4.2(a), the
Exercise Price in effect immediately prior to each such
issuance shall forthwith (except as otherwise provided in
this clause (i)) be adjusted to a price determined by
multiplying such Exercise Price by a fraction, the numerator
of which shall be the amount of consideration per share for
such Additional Stock; and the denominator of which shall be
$5.00, subject to adjustment under Section 4.2(a).
(B) No adjustment of the Exercise Price shall be made in an
amount less than one cent per share. Except to the limited
extent provided for in subsections (E)(3) and (E)(4), no
adjustment of such Exercise Price pursuant to this
subsection 4.2(c)(i)) shall have the effect of increasing
the Exercise Price above the Exercise Price in effect
immediately prior to such adjustment.
(C) In the case of the issuance of Common Stock for cash, the
consideration shall be deemed to be the amount of cash paid
therefor before deducting any reasonable discounts,
commissions or other expenses allowed, paid or incurred by
the Company for any underwriting or otherwise in connection
with the issuance and sale thereof.
(D) In the case of the issuance of the Common Stock for a
consideration in whole or in part other than cash, the
consideration other than cash shall be deemed to be the fair
value thereof as determined by the Board of Directors
irrespective of any accounting treatment.
(E) In the case of the issuance of options to purchase or other
rights to subscribe for Common Stock, securities by their
terms convertible into or exchangeable for Common Stock or
options to purchase or rights to subscribe for such
convertible or exchangeable securities, the following
provisions shall apply for all purposes of this subsection
4.2(c)(i) and subsection 4.2(c)(ii):
(1) The aggregate maximum number of shares of Common Stock
deliverable upon exercise (to the extent then exercisable)
of such options to purchase or rights to subscribe for
Common Stock shall be deemed to have been issued at the time
such options or rights were issued and for a consideration
equal to the consideration (determined in the manner
provided in subsections 4.2(c)(i)(C) and (c)(i)(D)), if any,
received by the Company upon the issuance of such options or
rights plus the minimum exercise price provided in such
options or rights for the Common Stock covered thereby.
(2) The aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange (to the extent
then convertible or exchangeable) for any such convertible
or exchangeable securities or upon the exercise of options
to purchase or rights to subscribe for such convertible or
exchangeable securities and subsequent conversion or
exchange thereof shall be deemed to have been issued at the
time such securities were issued or such options or rights
were issued and for a consideration equal to the
consideration, if any, received by the Company for any such
securities and related options or rights (excluding any cash
received on account of accrued interest or accrued
dividends), plus the minimum additional consideration, if
any, to be received by the Company upon the conversion or
exchange of such securities or the exercise of any related
options or rights (the consideration in each case to be
determined in the manner provided in subsections
4.2(c)(i)(C) and (c)(i)(D)).
(3) In the event of any change in the number of shares of Common
Stock deliverable or in the consideration payable to the
Company upon exercise of such options or rights or upon
conversion of or in exchange for such convertible or
exchangeable securities, including, but not limited to, a
change resulting from the antidilution provisions thereof,
the Exercise Price, to the extent in any way affected by or
computed using such options, rights or securities, shall be
recomputed to reflect such change, but no further adjustment
shall be made for the actual issuance of Common Stock or any
payment of such consideration upon the exercise of any such
options or rights or the conversion or exchange of such
securities.
(4) Upon the expiration of any such options or rights, the
termination of any such rights to convert or exchange or the
expiration of any options or rights related to such
convertible or exchangeable securities, the Exercise Price,
to the extent in any way affected by or computed using such
options, rights or securities or options or rights related
to such securities, shall be recomputed to reflect the
issuance of only the number of shares of Common Stock (and
convertible or exchangeable securities which remain in
effect) actually issued upon the exercise of such options or
rights, upon the conversion or exchange of such securities
or upon the exercise of the options or rights related to
such securities.
(5) The number of shares of Common Stock deemed issued and the
consideration deemed paid thereof pursuant to subsections
4.2(c)(i)(E)(1) and (2) shall be appropriately adjusted to
reflect any change, termination or expiration of the type
described in either subsection 4.2(c)(i)(E)(3) or (4).
(ii) "Additional Stock" shall mean any shares of Common Stock
issued (or deemed to have been issued pursuant to subsection 4.2(c)(i)(E)), by
the Company after the Warrant Issue Date.
(d) Adjustment Under Other Circumstances. In the event that the
Board of Directors of the Company determines in its sole discretion that one or
more events or circumstances have occurred which requires an equitable
adjustment to the Exercise Price, the Board of Directors of the Company may (but
shall not be required to) appropriately adjust the Exercise Price; provided,
however, that the Board of Directors of the Company may not increase the
Exercise Price pursuant to this Section 4.2(d).
4.3 Notice of Adjustments. In each case of an adjustment to the
Exercise Price pursuant to Section 4.2, the Company, at its expense, shall
promptly compute such adjustment and prepare a certificate setting forth such
adjustment and showing in detail the facts upon which such adjustment is based.
The Company shall promptly mail a copy of each such certificate to Holder
pursuant to Section 7.3 hereof.
5. Optional Redemption.
5.1 Optional Redemption at the Company's Option. During the period
beginning on the Original Issue Date and ending at 5:00 p.m. New York City time
on the date which is 86 days following the Original Issue Date (the "Redemption
Exercise Period"), the Company may, at its option, redeem not less than all of
the Warrants for an amount equal to the Optional Redemption Price.
5.2 Optional Redemption Price. The "Optional Redemption Price" means an
amount equal to $5 million during the first 30 days of the Redemption Exercise
Period, plus $250,000 on the 31st day after announcement, plus, for each
successive seven day period beyond such date, an additional $250,000 accruing on
the first day of such seven day period.
5.3 Redemption Procedures.
(a) To exercise its right to redeem the Warrants, the Company
shall give a notice of redemption to Holder. The notice shall: (i) state the
applicable Optional Redemption Price; and (ii) state that Warrants called for
redemption must be surrendered to the Company to collect the Optional Redemption
Price.
(b) Once notice of redemption is given, Warrants called for
redemption shall be deemed to have been cancelled and shall no longer be
exercisable. The Company shall pay Holder the Optional Redemption Price
immediately upon receipt of this Warrant Certificate.
6. Various Covenants of the Company.
6.1 No Impairment or Amendment. Except as contemplated by the
Securities Purchase Agreement, the Company shall not by any action, including,
without limitation, amending its charter, any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all such
action as may be necessary or appropriate to protect the rights of the holder
hereof against impairment. Without limiting the generality of the foregoing, the
Company (a) will not increase the par value of any Warrant Shares above the
amount payable therefor upon such exercise, (b) will take all such corporate
action as may be necessary or appropriate in order that the Company may validly
issue fully paid and nonassessable Warrant Shares, (c) will obtain and maintain
all such authorizations, exemptions or consents from any public regulatory body
having jurisdiction as may be necessary to enable the Company to perform its
obligations under this Warrant and (d) will not issue any capital stock or enter
into any agreement, the terms of which would have the effect, directly or
indirectly, of preventing the Company from honoring its obligations hereunder.
So long as any Warrants are outstanding, the Company will acknowledge
in writing, in form satisfactory to any holder of any such security, the
continued validity of the Company's obligations hereunder.
6.2 Reservation of Common Stock. The Company will at all times reserve
and keep available, solely for issuance, sale and delivery upon the exercise of
this Warrant, such number of shares of Common Stock equal to the number of
shares of Common Stock (and/or Other Securities) issuable upon the exercise of
this Warrant. All such shares of Common Stock (and/or Other Securities) shall be
duly authorized and, when issued upon exercise of this Warrant, will be validly
issued and fully paid and nonassessable with no liability on the part of the
holders thereof.
6.3 Changes to Par Value. In the event any adjustment to the Exercise
Price made pursuant to Section 4.2 hereof results in the Exercise Price per
share being less than the par value per share of the Warrant Shares to be issued
upon exercise of the Warrant, the Company agrees that it will take all actions
(including, if necessary, the calling of a special meeting of shareholders and
the recommendation of approval of such change to the shareholders) to have the
Company's Articles of Incorporation amended to lower the par value of the
Warrant Shares such that the Exercise Price per share will be no less the new
par value per share.
6.4 Indemnification. The Company shall indemnify, save and hold
harmless the holder of this Warrant and the holder of any Warrant Shares from
and against any and all liability, loss, cost, damage, reasonable attorneys' and
accountants' fees and expenses, court costs and all other out-of-pocket expenses
incurred by such holder in connection with enforcing any of the terms hereof.
6.5 Certain Expenses. The Company shall pay all expenses in connection
with, and all taxes (other than stock transfer taxes) and other governmental
charges that may be imposed in respect of the exercise of this Warrant and the
issuance and delivery of any Warrant Shares pursuant thereto.
7. Miscellaneous.
7.1 Nonwaiver. No course of dealing or any delay or failure to exercise
any right, power or remedy hereunder on the part of the holder of this Warrant
or of any Warrant Shares shall operate as a waiver of or otherwise prejudice
such holder's rights, powers or remedies.
7.2 Amendment. Any term, covenant, agreement or condition of the
Warrants may, be amended only by a written agreement signed by the Company and
the holder hereof.
7.3 Communications. All communications provided for herein shall
be delivered, or sent by recognized overnight delivery service, addressed as
follows:
(a) If to the Company, at:
EFTC Corporation
9351 Grant Street, Sixth Floor
Denver, CO 80229
Attention: Chief Financial Officer
Telecopy No. (303) 280-8358
with a copy (which shall not constitute notice) to:
Holme Roberts & Owen, LLP
1700 Lincoln, Suite 4100
Denver, CO 80203
Attention: Francis R. Wheeler, Esq.
Telecopy No.: (303) 866-0200
(b) If to the holder of any Warrant or of any Warrant
Shares, to such holder at its address appearing on the Warrant Register.
The address of the Company may be changed at any time and from time to
time and shall be the most recent such address furnished in writing by the
Company to the holder or holders of the Warrants and Warrant Shares. The address
of any such holder for any purpose hereof may be changed at any time and from
time to time and shall be the most recent such address furnished in writing by
such holder to the Company.
Any communication provided for herein shall become effective only upon
and at the time of receipt by the Person to whom it is given, unless such
communication is sent by reputable overnight courier, in which case it shall be
deemed to have been received on the day of its receipt, if a Business Day, or
the next succeeding Business Day.
Any communication provided for herein given by facsimile transmission
shall become effective at the time of transmission to the Person to whom it is
given, provided that the original of such communication is sent on the day of
such facsimile transmission to such Person by a courier guaranteeing overnight
delivery.
7.4 Remedies. The Company stipulates that the remedies at law of the
holder or holders of the Warrants and of Warrant Shares in the event of any
default by the Company in the performance of or compliance with any of the terms
of the Warrants are not and will not be adequate and that, to the fullest extent
permitted by law, such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or therein or by an
injunction against a violation of any of the terms hereof or thereof, or
otherwise.
7.5 Successors and Assigns. This Warrant and the rights evidenced hereby
shall inure to the benefit of and be binding upon the successors and assigns of
the Company, the holder or holders of this Warrant and of the Warrant Shares, to
the extent provided herein, and shall be enforceable by such holder or holders.
This Warrant shall not be sold, assigned or otherwise transferred, directly or
indirectly, except to persons controlled by Thayer Equity Investors IV, L.P., TC
Manufacturing Holdings, L.L.C. or RCBA Strategic Partners, L.P., prior to the
earlier to occur of September 1, 2000 and the Failure to Approve the
Transactions.
7.6 Modification and Severability. If, in any action before any court or
agency legally empowered to enforce any provision contained herein, any
provision hereof is found to be unenforceable, then such provision shall be
deemed modified to the extent necessary to make it enforceable by such court or
agency. If any such provision is unenforceable as set forth in the preceding
sentence, the unenforceability of such provision shall not affect the other
provisions of this Warrant, but this Warrant shall be construed as if such
unenforceable provision had never been contained herein.
7.7 Headings. The headings of the Sections of this Warrant are for
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
7.8 Governing Law. This Warrant, including the validity hereof and the
rights and obligations of the parties hereto and all amendments and supplements
hereof and all waivers and consents hereunder, shall be construed in accordance
with and governed by the domestic substantive laws of the Governing Jurisdiction
without giving effect to any choice of law or conflicts of law provision or rule
that would cause the application of the domestic substantive laws of any other
jurisdiction. The "Governing Jurisdiction" shall mean the State of New York.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
as an instrument under seal and to be attested by its duly authorized officers
as of the date first above written.
EFTC CORPORATION
By: ______________________________
Name: ______________________________
Title:______________________________
THAYER-BLUM FUNDING, L.L.C.
By: ______________________________
Name: ______________________________
Title:______________________________
FORM OF NOTICE OF EXERCISE
(To be executed only upon partial or full exercise
of the within Warrant)
The undersigned registered holder of the within Warrant hereby
irrevocably elects to exercise on [specify Exercise Date] the within Warrant for
and purchases __________ shares of Common Stock (or Other Securities) [Specify]
of EFTC CORPORATION and [herewith makes payment therefor in the amount of
$_____________] [or] [has elected to use the net issue exercise option as set
forth in Section 2.3 of the Warrant], all at the price and on the terms and
conditions specified in the within Warrant, and requests that a certificate (or
certificates in denominations of __________ shares) for such shares hereby
purchased be issued in the name of and delivered to: (choose one)
(a) the undersigned or
(b) ________________, whose address is ____________________________
and, if such shares shall not include all the Warrant Shares issuable as
provided in the within Warrant, that a new Warrant of like tenor for the number
of Warrant Shares not being purchased hereunder be issued in the name of and
delivered to (choose one)
(c) the undersigned or
(d) ______________, whose address is ______________________________.
Dated: _____________ ___, ________
By: ______________________________
(Signature of Registered Holder)
NOTICE: The signature on this Notice of Exercise must correspond with
the name as written upon the face of the within Warrant in
every particular, without alteration or enlargement or any
change whatever.
FORM OF ASSIGNMENT
(To be executed only upon the assignment
of the within Warrant)
FOR VALUE RECEIVED, the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto ________________, whose address
is _________________, all of the rights of the undersigned under the within
Warrant, with respect to ________ shares of Common Stock (or Other Securities)
[Specify] of EFTC CORPORATION and, if such shares shall not include all the
Warrant Shares issuable as provided in the within Warrant, that a new Warrant of
like tenor for the number of Warrant Shares not being transferred hereunder be
issued in the name of and delivered to the undersigned, and does hereby
irrevocably constitute and appoint ____________________ Attorney to register
such transfer on the books of EFTC CORPORATION maintained for the purpose, with
full power of substitution in the premises.
Dated: ______________ ____, _______.
By: ______________________________
(Signature of Registered Holder)
NOTICE: The signature on this Assignment must correspond with the name
as written upon the face of the within Warrant in every
particular, without alteration or enlargement or any change
whatever.