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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
September 30, 1997, is among EFTC CORPORATION, a Colorado corporation
("Parent"), and the undersigned SHAREHOLDERS (individually a "Shareholder" and
together, the "Shareholders") of Parent.
RECITALS
A. Parent, CTI Acquisition Corp., a Florida corporation ("Merger Sub"),
and Circuit Test, Inc., a Florida corporation ("Circuit Test"), have entered
into an Agreement and Plan of Reorganization, dated July 9, 1997 (the
"Reorganization Agreement"), pursuant to which Circuit Test was merged with and
into Merger Sub and the Shareholders received in consideration therefor, among
other things, shares of Common Stock, $.01 par value, of Parent ("Parent Common
Stock").
B. This Agreement is executed and delivered pursuant to Section 8.2(d)
of the Reorganization Agreement and sets forth the terms on which the
Shareholders may require Parent to register, under the Securities Act (as
defined in Article I), securities of Parent owned by them.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the following meanings as used in this
Agreement:
1.1 "Agreement" has the meaning set forth in the opening
statement of this Agreement.
1.2 "Circuit Test" has the meaning set forth in Recital A.
1.3 "Demand Registration" has the meaning set forth in
Section 2.1.
1.4 "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations
promulgated thereunder.
1.5 "Indemnified Party" has the meaning set forth in
Section 6.2.
1.6 "Indemnifying Party" has the meaning set forth in
Section 6.2.
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1.7 "Losses" has the meaning set forth in Section 6.1.
1.8 "Reorganization Agreement" has the meaning set forth in
Recital A.
1.9 "Merger Sub" has the meaning set forth in Recital A.
1.10 "Parent" has the meaning set forth in the opening
statement of this Agreement.
1.11 "Parent Common Stock" has the meaning set forth in
Recital A.
1.12 "Person" means any individual, corporation, partnership, limited
liability company, trust, organization, association, governmental body or
agency.
1.13 "Piggyback Registration" has the meaning set
forth in Section 3.1.
1.14 "Pro Rata Share" has the meaning set forth in Section
6.2.
1.15 "Registerable Securities" means any outstanding shares of Parent
Common Stock held by the Shareholders on the date hereof and any securities
issued or issuable with respect thereto by way of stock dividend or stock split
or in connection with a combination of shares, recapitalization, merger,
consolidation, reclassification or other reorganization. A Registerable Security
shall cease to be a Registerable Security when: (a) a Registration Statement
with respect to the sale of such security shall have become effective under the
Securities Act and such security shall have been disposed of in accordance with
such Registration Statement; (b) such security shall have been distributed to
the public pursuant to Rule 144 (or any successor provision) under the
Securities Act; (c) such security shall have been otherwise transferred, new
certificates for which, not bearing a legend restricting further transfer, shall
have been delivered by Parent and subsequent disposition of the security shall
not require registration or qualification of such security under the Securities
Act or any similar state law then in force, or (d) such security shall have
ceased to be outstanding.
1.16 "Registration Expenses" means all expenses incident to Parent's
performance of or compliance with this Agreement, including, all registration
and filing fees, fees and expenses of compliance with federal and state
securities laws, printing expenses, messenger and delivery expenses, and fees
and disbursements of counsel for Parent and all independent certified public
accountants, underwriters (excluding underwriting discounts, commissions spreads
or fees of underwriters, selling brokers, dealer managers or similar securities
industry professionals), and other Persons retained by Parent for the purpose of
fulfilling its obligations under this Agreement.
1.17 "Registration Statement" means any registration statement or
comparable document under Section 5 of the Securities Act through which a public
sale or disposition of Registrable Securities may be registered.
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1.18 "SEC" means the Securities and Exchange Commission or any other
federal agency administering the Securities Act.
1.19 "Securities Act" means the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of promulgated
thereunder.
1.20 "Shareholder" and the "Shareholders" have the meanings set forth
in the opening statement of this Agreement.
ARTICLE II
DEMAND REGISTRATION
2.1 Request for Registration. At any time beginning one year after the
date hereof, the holders of a majority of the then outstanding Registrable
Securities, may request registration under the Securities Act of all or part of
their Registrable Securities (the "Initial Demand"). In addition, at any time
eighteen (18) months after the effectiveness of the Registration Statement filed
with respect to the Initial Demand, the holders of a majority of the then
outstanding Registrable Securities, may request an additional registration under
the Securities Act of all or part of their Registrable Securities not registered
pursuant to the Initial Demand (the "Secondary Demand"). In either instance,
such holders may exercise their right under this Section 2.1 by giving a written
request to Parent signed by them specifying the number of shares of Registrable
Securities requested to be included and the intended method of disposition
thereof. Within ten days after receipt of the request, Parent will give written
notice of the request to all other holders of Registrable Securities and will
include in such registration all Registrable Securities for which Parent has
received written requests for inclusion within fifteen (15) days after Parent's
notice is given to the holders pursuant to this Section 2.1, so long as the
aggregate amount of Registrable Securities that the holders request be included
in each such registration equals at least 40% of all Registrable Securities and
have a fair market value at the time of the request equal to $5,000,000 (a
"Demand Registration").
2.2 Underwritten Offerings; Priority on Demand Registrations. If the
holders of a majority of the Registrable Securities requested to be included so
elect, the Demand Registration may be in the form of an underwritten offering.
If the Demand Registration is an underwritten offering, Parent shall select the
managing underwriters for the offering and Parent may elect to include other
securities in such registration on the same terms and conditions as the
Registrable Securities to be included in such registration; provided however, if
the managing underwriters advise Parent in writing that in their opinion the
number of Registrable Securities and other securities to be included in the
registration exceeds the number that can be sold in such offering at a price
satisfactory to the holders of a majority of the Registrable Securities
requested to be included in such registration, Parent will give priority for
inclusion in such registration: (a) first, to the Registrable Securities
requested to be included in such registration (or to such lesser number of
Registrable Securities that is equal to the number that, in the opinion of the
managing
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underwriters, can be sold, pro rata among the holders thereof based on
the number of Registrable Securities owned), (b) second, to the securities, if
any, requested to be included in such registration pursuant to warrants or
options issued to the representatives of the underwriters with respect thereto;
(c) third, to the securities Parent proposes to include in such registration;
(d) fourth, to the securities that Parent is otherwise obligated to include in
such registration; and (e) fifth, to other securities that Parent may desire to
include in such registration.
2.3 Restrictions on Demand Registration. Notwithstanding anything in
this Article II to the contrary, if Parent shall furnish to the holders of
Registrable Securities requesting registration a certificate signed by the Chief
Executive Officer or President of Parent stating that, in the good faith
reasonable judgment of the Board of Directors of Parent, such registration of
Registrable Securities would materially interfere with, or require premature
disclosure of, any financing, acquisition or reorganization involving Parent or
any of its wholly-owned subsidiaries or would otherwise have a material adverse
effect on Parent or the selling holders if undertaken at the time requested,
Parent shall have the right to defer taking action with respect to such filing
for a period of not more than ninety (90) days after receipt of the request of
the holders of Registrable Securities; provided, however, that Parent may not
utilize this right more than once in any twelve (12) month period.
2.4 Expenses. Except as otherwise provided in this Article II, Parent
will pay all Registration Expenses in connection with a Demand Registration. In
a Demand Registration that is an underwritten offering, all underwriting
discounts, commissions spreads or fees of underwriters, selling brokers, dealer
managers or similar securities industry professionals relating to the
Registrable Securities being offered thereby will be paid by the holders thereof
pro rata based on the number of Registrable Securities that each such holder has
requested be registered.
ARTICLE III
PIGGYBACK REGISTRATION
3.1 Right to Piggyback. Whenever Parent proposes to register any of its
securities under the Securities Act (other than as (a) a Demand Registration;
(b) a registration of securities in connection with a merger, an acquisition, an
exchange offer, other business combination or an employee benefit plan
maintained by Parent or its subsidiaries; or (c) a registration of securities on
Form S-4 or S-8 or any successor or similar form) and the registration form to
be used may be used for the registration of Registrable Securities (a "Piggyback
Registration"), Parent will give prompt written notice to all holders of
Registrable Securities of its intention to effect such a registration and will
include in such registration, subject to Section 3.3, all Registrable Securities
with respect to which Parent has received written requests for Piggyback
Registration within fifteen (15) days after Parent's notice is given to the
holders of Registrable Securities.
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3.2 Piggyback Expenses. Parent will pay all Registration Expenses in
connection with a Piggyback Registration. In a Piggyback Registration that is an
underwritten offering, all underwriting discounts, commissions spreads or fees
of underwriters, selling brokers, dealer managers or similar securities industry
professionals relating to the Registrable Securities being offered thereby will
be paid by the holders thereof pro rata based on the number of Registrable
Securities that each such holder has requested be registered.
3.3 Restrictions on Piggyback Registrations. Notwithstanding anything
to the contrary in this Article III: (a) if, at any time after receiving such
requests and prior to the effective date of the Registration Statement filed in
connection with the Piggyback Registration, Parent for any reason decides not to
register securities of Parent, Parent will give written notice of its decision
to the holders of Registrable Securities and thereupon be relieved of its
obligation to register any Registrable Securities in connection with such
registration; and (b) if Parent determines for any reason to delay a Piggyback
Registration, Parent may do so by giving written notice of its decision to the
holders of Registrable Securities.
3.4 Priority on Underwritten Primary Registrations. If a Piggyback
Registration is an underwritten offering initiated on behalf of Parent and the
managing underwriters advise Parent in writing that in their opinion the number
of securities to be included in such registration exceeds the number that can be
sold in such offering at a price satisfactory to Parent, Parent will give
priority for inclusion in such registration: (a) first, to the securities Parent
proposes to include in such registration; (b) second, to the securities, if any,
requested to be included in such registration pursuant to warrants or options
issued to the representatives of the underwriters with respect thereto; (c)
third, securities that Parent has become, prior to the date hereof, otherwise
obligated to include in such registration; (d) fourth, to the Registrable
Securities requested to be included in such registration (or to such lesser
number of Registrable Securities, which is equal to the number that, in the
opinion of the managing underwriters, can be sold, pro rata among the holders
thereof based on the number of Registrable Securities owned); and (d) fifth, to
other securities that Parent may desire to include in such registration.
3.5 Priority on Underwritten Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
Parent's securities, and the managing underwriters advise Parent in writing that
in their opinion the number of securities requested to be included in the
registration exceeds the number that can be sold in the offering, Parent will
give priority for inclusion in such registration: (a) first, to the securities
requested to be included by the holders requesting such registration; (b)
second, to the securities sought to be included in such registration pursuant to
the warrants or options issued to the representatives of the underwriters with
respect thereto; (c) third, to the Registrable Securities requested to be
included in such registration (or to such lesser number of Registrable
Securities, which is equal to the number that, in the opinion of the managing
underwriters, can be sold, pro rata among the holders thereof based on the
number of Registrable Securities owned), and (d) fourth, to other securities
that Parent may desire to include in such registration.
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ARTICLE IV
REGISTRATION PROCEDURES
4.1 Procedures Parent Will Follow. Whenever the holders of the
Registrable Securities duly request that any Registrable Securities be
registered pursuant to this Agreement, Parent will use its best efforts to
effect the registration of the Registrable Securities on a form available under
the Securities Act for which Parent then qualifies and that counsel for Parent
deems appropriate and which form is available for the sale of the Registrable
Securities in accordance with the intended method of disposition, and pursuant
thereto Parent will do the following as expeditiously as possible:
(a) Registration Statement. Parent will prepare and file with
the SEC, and use its best efforts to cause to become effective, a Registration
Statement with respect to the Registrable Securities Parent has been so
requested to register on a form available under the Securities Act for which
Parent then qualifies and that counsel for Parent deems appropriate and which
form is available for the sale of the Registrable Securities in accordance with
the intended method of disposition.
(b) Maintenance of Effectiveness. Parent will prepare and file
with the SEC such amendments and supplements to the Registration Statement and
prospectus used for the sale of the Registrable Securities as may be necessary
to keep the Registration Statement effective until the earlier of: (i) the date
on which the sale of the Registrable Securities is completed and (ii) the date
ninety (90) days after the Registration Statement with respect to the
Registrable Securities becomes effective, and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by the
Registration Statement during its effectiveness in accordance with the intended
methods of disposition of such securities.
(c) Copies of Prospectuses. Parent will furnish to the holders the
number of copies of the Registration Statement, each amendment and supplement
thereto, the prospectus included in the Registration Statement (including each
preliminary prospectus) and such other documents that the holders may reasonably
request to facilitate the disposition of the Registrable Securities Parent has
been so requested to register. At any time when a prospectus with respect to the
Registrable Securities is required to be delivered under the Securities Act,
Parent will notify the holders of the occurrence of any material change in the
information contained in the prospectus included in the Registration Statement.
Whenever in Parent's judgment it is necessary, Parent will prepare a supplement
or amendment to the prospectus so that, as thereafter delivered to the proposed
purchasers of the Registrable Securities, the prospectus will not contain, to
Parent's knowledge, any untrue statement of material fact or omit to state any
fact necessary to make the statements in it not misleading, and the holders will
discontinue disposition of the Registrable Securities until the holders are
advised in writing by Parent that the use of the prospectus may be resumed and
are furnished with a supplement or amendment to the
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prospectus. If Parent shall give any notice to suspend the disposition of
Registrable Securities pursuant to a prospectus, Parent shall extend the period
of time during which Parent is required to maintain the Registration Statement
effective pursuant to this Agreement by the number of days during the period
from and including the date of the giving of such notice through and including
the date the holders are advised by Parent that the use of the prospectus may be
resumed or receive the copies of the supplement or amendment to the prospectus.
(d) Blue Sky Compliance. Parent will use its best efforts to
register or qualify the Registrable Securities Parent has been so requested to
register under the securities or blue sky laws of such jurisdictions within the
United States of America as any holder of Registrable Securities selling
Registrable Securities in connection with the registration reasonably requests,
and do any and all other acts and things reasonably necessary or advisable to
enable the holder to dispose of the holder's Registrable Securities in such
jurisdictions; except Parent will not be required to: (i) qualify generally to
do business in any jurisdiction where it is not then so qualified or (ii)
consent to, or take any action that would subject it to, general service of
process or taxation in any jurisdiction where it is not then so subject.
(e) Listing; Transfer Agent. Parent will use its best efforts
to cause all such Registrable Securities to be listed on all securities
exchanges or quoted on all automated quotation systems on which securities of
the same class issued by Parent are then listed or quoted and will provide a
transfer agent and registrar for all such Registrable Securities no later than
the effective date of the Registration Statement.
(f) Customary Agreements. In the case of an underwritten
offering, Parent will enter into customary agreements, including an underwriting
agreement in customary form, as the holders of a majority of the Registrable
Securities being registered or the underwriters, if any, reasonably request in
order to expedite or facilitate the disposition of the Registrable Securities
being so registered.
(g) Certain Information. Parent will make available for
inspection upon reasonable request by any holder of Registrable Securities being
registered, any underwriter participating in any disposition pursuant to the
Registration Statement, and any attorney, accountant or other agent retained by
the holder or underwriter, all financial and other records, pertinent corporate
documents and properties of Parent, and cause Parent's officers, directors and
employees to supply all information reasonably requested by the holder,
underwriter, attorney, accountant or agent in connection with the Registration
Statement, upon receipt by Parent of confidentiality agreements satisfactory to
Parent.
(h) Compliance with Law. Parent will comply with all rules and
regulations of the SEC and applicable state securities laws governing the manner
of sale of securities in connection with the disposition of any Registrable
Securities pursuant to any Registration Statement.
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(i) Stop-Orders. Parent will promptly notify all holders of
Registrable Securities being registered of its receipt of: (i) any stop-order,
injunction or order suspending the effectiveness of any Registration Statement
covering any Registrable Securities or, to Parent's knowledge, the initiation of
any proceeding for that purpose, or (ii) any notification with respect to the
limitation, restriction or suspension of the offer or sale of any Registrable
Securities in any jurisdiction in which the Registrable Securities were
qualified to be sold or, to Parent's knowledge any proceeding for that purpose.
If Parent notifies the holders of any such event, the holders will immediately
discontinue all sales or other dispositions of the Registrable Securities
pursuant to the Registration Statement until Parent notifies the holders that
such stop-order, injunction, order, limitation, restriction or suspension has
been lifted, except, unless Parent notifies the holders otherwise, if a
stop-order, injunction, order, limitation, restriction or suspension issued by a
state securities or blue sky administrator applies only to offers and sales in
such state, the holders will immediately discontinue all sales and other
disposition of the Registrable Securities in such state. Parent, with
cooperation of the holders, will use its reasonable efforts to contest any such
proceeding and to obtain the withdrawal of any such stop- order, injunction,
order, limitation, restriction or suspension.
4.2 Procedures Holders of Registrable Securities Will Follow. Whenever
the holders of the Registrable Securities duly request that any Registrable
Securities be registered pursuant to this Agreement, the holders will do the
following as expeditiously as possible:
(a) Certain Information. The holders will provide Parent with
such information and affidavits about the holders and the intended manner of
disposition of the Registrable Securities and otherwise use their best efforts
to cooperate with Parent and the underwriters, if any, Parent may require to
satisfy any obligation of Parent under this Agreement to register the
Registrable Securities under federal and state securities laws and otherwise
take actions related thereto. If the holders fail to provide the information
required under this Section 4.2(a), Parent may delay the registration until the
information is provided and the holders agree to pay Parent its out-of-pocket
expenses that arise from the failure to provide such information. The holders
will notify Parent of the occurrence of any material change in the information
provided by them that is contained in the prospectus included in the
Registration Statement, as then in effect. Whenever in Parent's judgment it is
necessary, Parent will prepare a supplement or amendment to the prospectus so
that, as thereafter delivered to the proposed purchasers of the Registrable
Securities, the prospectus will not contain, to Parent's knowledge, any untrue
statement of material fact or omit to state any fact necessary to make the
statements in it not misleading, and the holders will discontinue disposition of
the Registrable Securities until the holders are advised in writing by Parent
that the use of the prospectus may be resumed and are furnished with a
supplement or amendment to the prospectus. If Parent shall give any notice to
suspend the disposition of Registrable Securities pursuant to a prospectus,
Parent shall extend the period of time during which Parent is required to
maintain the Registration Statement effective pursuant to this Agreement by the
number of days during the period from and including the date of the giving of
such notice through and including the date the holders are advised by
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Parent that the use of the prospectus may be resumed or receive the copies of
the supplement or amendment to the prospectus.
(b) Compliance with Law. The holders will comply with all
rules and regulations of the SEC and applicable state securities laws governing
the manner of sale of securities in connection with the disposition of any
Registrable Securities pursuant to any Registration Statement.
(c) Participation in Underwritten Offerings. No holder of
Registrable Securities may participate in any underwritten offering hereunder
unless such holder: (i) agrees to sell such holder's securities on the basis
provided in any underwriting arrangements approved, subject to the terms and
conditions hereof, by the holders of a majority (by number of shares) of
Registrable Securities to be included in such underwritten offering and (ii)
completes and executes all questionnaires, indemnities, underwriting agreements
and other documents reasonably required under the terms of such underwriting
arrangements.
ARTICLE V
BLACK OUT PERIODS
5.1 Restrictions on Public Sale by Holders. Whenever Parent proposes to
register any of its securities under the Securities Act in an underwritten
offering (other than as (a) a Demand Registration; (b) a registration of
securities in connection with a merger, an acquisition, an exchange offer, other
business combination or an employee benefit plan maintained by Parent or its
subsidiaries; or (c) a registration of securities on Form S-4 or S-8 or any
successor or similar form) and if requested by the managing underwriters, each
holder of Registrable Securities will not effect any public sale or disposition
of securities of Parent the same as or similar to those being registered, or any
securities convertible into or exchangeable or exercisable for such securities,
including a sale pursuant to Rule 144 under the Securities Act, except as part
of such registration, during the 14-day period prior to, and during the 90-day
period (or, with respect to a Piggyback Registration, such longer period of up
to 120 days as may reasonably be requested by such managing underwriters)
beginning on the effective date of the related Registration Statement, to the
extent timely notified in writing by Parent or the managing underwriters.
5.2 Restrictions on Public Sale by Parent and Others. In
connection with any Demand Registration that is an underwritten offering and if
requested by the managing underwriters, Parent will not effect any public sale
or disposition of any securities the same as or similar to those being
registered by Parent, except as part of such registration, during the 14-day
period prior to, and during the 90-day period beginning on the effective date of
the related Registration Statement to the extent timely notified in writing by
the managing underwriters. Notwithstanding anything to the contrary in the
foregoing, the restrictions under this Section 5.2 shall not limit the issuance
of securities of Parent, or options or warrants to purchase such securities,
that Parent is required to issue pursuant to: (a) any employee stock option plan
or non-
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employee director stock option plan in effect at the time Parent receives a
request for Demand Registration; (b) the exercise of any outstanding options or
warrants with respect to securities of Parent; or (c) the exercise of any
conversion or exchange right in accordance with the terms of any other security
convertible into or exchangeable for securities the same as or similar to those
being registered by Parent.
5.3 Third-Party Registration Rights. This Agreement is in all cases
subject to the contractual registration rights granted pursuant to the
Registration Rights Agreement between Parent and certain of its shareholders
dated January __, 1994 and with the contractual registration rights granted
pursuant to the Registration Rights Agreement between Parent and certain former
shareholders of Current Electronics, Inc. dated February __, 1997.
ARTICLE VI
INDEMNIFICATION
6.1 Indemnification by Parent. Parent will indemnify and hold harmless,
to the extent permitted by law, each holder of Registrable Securities and,
if applicable, the officers and directors of the holder, and each Person who
controls the holder (within the meaning of the Securities Act or the Exchange
Act) from and against any action, suit, proceeding, hearing, investigation,
charge, complaint, claim, demand, injunction, judgment, order, decree, ruling,
damage, dues, penalty, fines, costs, amounts paid in settlement, liabilities,
obligations, losses, expenses and fees, including court costs and attorneys'
fees and expenses (collectively, "Losses") that the holder and, if applicable,
the officers and directors of the holder, and each Person who controls the
holder may suffer through and after the date of the claim for indemnification
caused by or arising out of any untrue or alleged untrue statement of material
fact contained in any Registration Statement, prospectus, preliminary
prospectus, or other related filing with the SEC or any other federal or state
governmental agency, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are caused by or contained in
any information furnished in writing to Parent by any holder of Registrable
Securities expressly for use therein or by any holder's failure to comply with
any legal requirement applicable to such holder and not contractually assumed by
Parent to deliver a copy of the Registration Statement or prospectus or any
amendments or supplements thereto after Parent has furnished the holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, Parent shall indemnify the underwriters, their officers and directors,
and each Person who controls the underwriters (within the meaning of the
Securities Act or the Exchange Act) to the extent customary.
6.2 Indemnification by Holders. In connection with any registration in
which a holder of Registrable Securities is participating, each such Holder will
indemnify and hold harmless, to the extent permitted by law, Parent, its
directors and officers and each Person who controls Parent (within the meaning
of the Securities Act or the Exchange Act) from and against the
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holder's Pro Rata Share (as defined in this Section 6.2) of all Losses that
Parent, its directors and officers and each Person who controls Parent may
suffer through and after the date of the claim for indemnification caused by or
arising out of any untrue or alleged untrue statement of material fact contained
in any Registration Statement, prospectus, preliminary prospectus, or other
related filing with the SEC or any other federal or state governmental agency,
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but only to the extent that the same are caused by or contained in any
information furnished in writing to Parent by any holder of Registrable
Securities expressly for use therein or by any holder's failure to comply with
any legal requirement applicable to such holder and not contractually assumed by
Parent to deliver a copy of the Registration Statement or prospectus or any
amendments or supplements thereto after Parent has furnished the holder with a
sufficient number of copies of the same. For purposes of the foregoing, a
holder's "Pro Rata Share" means that fraction equal to the amount of the
proceeds received or to be received by the holder in connection with the
registration over the total proceeds received or to be received by all holders
in connection with the registration.
6.3 Indemnification Procedure. If any Person has a claim for Losses
hereunder (an "Indemnified Party"), the Indemnified Party will: (a) notify the
party or parties hereto from which it is entitled to make such claim
(individually, an "Indemnifying Party" and, together, the "Indemnifying
Parties") of such claim, specifying the nature of the Losses and the amount or
estimated amount thereof if feasible, and (b) unless in the Indemnified Party's
reasonable judgment (based on written advice of counsel) a conflict of interest
between the Indemnified Party and the Indemnifying Parties may exist with
respect to the matter giving rise to such claim, permit the Indemnifying Party
to assume and thereafter conduct the defense of the matter with counsel of the
Indemnifying Party's choice reasonably satisfactory to the Indemnified Party. If
the defense is so assumed, the Indemnifying Party will not be subject to any
liability for any settlement made with respect to such claim by the Indemnified
Party without its consent, which will not be unreasonably withheld. An
Indemnifying Party who is not entitled to or elects not to assume the defense of
a claim, will not be obligated to pay the fees and expenses of more than one
counsel for all parties it indemnifies with respect to such claim, unless in the
reasonable judgment of any Indemnified Party (based on written advice of
counsel) a conflict of interest may exist between such Indemnified Party and any
other Indemnified Parties with respect to such claim.
ARTICLE VII
GENERAL PROVISIONS
7.1 Remedies. Any Person having rights under this Agreement will be
entitled to enforce them specifically, to recover damages caused by reason of
any breach of any provision of this Agreement, and to exercise all other rights
granted by law.
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7.2 Successors and Assigns. This Agreement will bind and inure to the
benefit of the respective successors and assigns of the parties hereto, whether
so expressed. Any provision of this Agreement for the benefit of the holders of
Registrable Securities are also for the benefit of, and enforceable by, any
subsequent holder of Registrable Securities to which the subsequent holder has
been expressly assigned such rights at the time of the transfer of the
Registrable Securities to him, but not otherwise.
7.3 Term; Effect of Expiration or Termination. This Agreement shall be
effective as of the date hereof, and unless earlier terminated in accordance
with this Agreement, shall expire on the earliest of: (a) three (3) years from
the date of this Agreement or (b) such time as all Registrable Securities have
been sold pursuant to an effective Registration Statement under the Securities
Act or may be publicly sold without registration. Moreover, the obligation of
Parent to register its securities under this Agreement as to any Shareholder
shall terminate at such time as such Shareholder can then publicly sell all of
its Registrable Securities without registration under the Securities Act during
a three-month period pursuant to Rule 144 under the Securities Act or otherwise.
In the event of termination or expiration of this Agreement, this Agreement
shall forthwith become void and there shall be no liability or obligation on the
part of the parties hereto, except the provisions of Article VI
(Indemnification) and this Article VII (General Provisions) shall remain in full
force and effect and survive any termination of this Agreement.
7.4 Amendments; Modifications. This Agreement may be amended or
modified in writing by Parent and the holders of a majority of the Registrable
Securities at the time of such amendment or modification.
7.5 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail, return receipt
requested, or sent via facsimile, with confirmation of receipt, to the parties
at the following address or at such other address for a party as shall be
specified by notice hereunder:
(a) if to Parent, to:
EFTC Corporation
0000 Xxxx 0xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Facsimile No.: (000) 000 0000
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(b) if to the Shareholders, to:
Xxxxx X. Xxxxxxxx, Xx.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
7.6 Entire Agreement. This Agreement and the documents and instruments
and other agreements specifically referred to herein or delivered pursuant
hereto constitute the entire agreement among the parties hereto with respect to
the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties hereto with respect to the subject
matter hereof.
7.7 Severability. In the event that any provision of this Agreement, or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties hereto further agree to
replace such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
7.8 Remedies Cumulative; No Waiver. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. No failure or delay
on the part of any party hereto in the exercise of any right hereunder shall
impair such right or be construed to be a waiver of, or acquiescence in, any
breach of any representation, warranty or agreement herein, nor shall any single
or partial exercise of any such right preclude other or further exercise thereof
or of any other right.
7.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado (without regard to the
principles of conflicts of law thereof).
7.10 Rules of Construction. The parties hereto agree that they have
been represented by counsel during the negotiation, preparation and execution of
this Agreement and, therefore, waive the application of any law, regulation,
holding or rule of construction providing that ambiguities in an agreement or
other document will be construed against the party drafting such agreement or
document.
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7.11 Interpretation. When a reference is made in this Agreement to
Articles, Recitals or Sections, such reference shall be to an Article, Recital
or Section to this Agreement unless otherwise indicated. The words "include,"
"includes" and "including" when used herein shall be deemed in each case to be
followed by the words "without limitation." The phrase "made available" in this
Agreement shall mean that the information referred to has been made available if
requested by the party hereto to whom such information is to be made available.
The table of contents and Article and Section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. In this Agreement, any reference to
a party's "knowledge" means such party's actual knowledge after due and diligent
inquiry of officers, directors and other employees of such party reasonably
believed to have knowledge of such matters. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and neuter
forms.
7.12 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties hereto and delivered to the other parties hereto, it being
understood that all parties hereto need not sign the same counterpart.
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SIGNATURE PAGE--REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have duly executed this
Registration Rights Agreement as of the date first written above.
Parent:
EFTC CORPORATION,
a Colorado corporation
By: /s/ XXXX XXXXXXXXX
------------------------------------------
Shareholders:
Xxxxx X. Xxxxxxxx, Xx. Grantor Retained
Income Trust u/a/d 12/31/89
By /s/ XXXXX X. XXXXXXXX, XX.
------------------------------------------
Its Trustee
/s/ XXXXX X. XXXXXXXX, XX.
---------------------------------------------
Xxxxx X. Xxxxxxxx, Xx.
/s/ XXXX X. XXXXXXXX
---------------------------------------------
Xxxx X. Xxxxxxxx
/s/ XXXXX X. XXXXXXXX
---------------------------------------------
Xxxxx X. Xxxxxxxx
/s/ XXX X. XXXXXXXX
---------------------------------------------
Xxx X. Xxxxxxxx
/s/ XXXXX X. XXXXXX
---------------------------------------------
Xxxxx X. Xxxxxx
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