THIS VOTING AGREEMENT (the "Voting Agreement"), is made and entered
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into as of March __, 2000 between those holders of the shares of outstanding
common stock, $.01 par value per share ("Common Stock"), of the Company (as
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defined below) set forth on the signature page hereof (each, a "Shareholder"
and, collectively, the "Shareholders") and Xxxxxx-XXXX Funding, L.L.C., a
Delaware limited liability company (the "Purchaser").
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RECITALS
A. Concurrently with the execution of this Voting Agreement, pursuant to
a Securities Purchase Agreement, dated as of March 30, 2000 (the "Purchase
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Agreement"), by and between EFTC Corporation, a Colorado corporation (the
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"Company"), and the Purchaser, the parties thereto agreed to a series of
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transactions, including the issuance and sale to Purchaser of $46,000,000 in
aggregate principle amount of 15% Senior Subordinated Exchangeable Notes due
2006 ("Exchangeable Notes") and warrants to purchase shares of Common Stock (the
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"Warrants") in an amount equal to 19.9% of the outstanding Common Stock (the
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purchase and sale of the Exchangeable Notes and Warrants being referred to as
the "Initial Investment").
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B. Pursuant to the terms of the Purchase Agreement, Purchaser intends to
engage in a tender offer for shares of Common Stock (the "Tender Offer" and
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together with the Initial Investment, the "Transactions"). The consummation of
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the Transactions requires the approval of the Company's shareholders
("Shareholder Approval")
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C. The Board of Directors has, prior to the execution of this Voting
Agreement, duly and validly approved and adopted the Purchase Agreement, and has
resolved and agreed to call a special meeting of shareholders (the "Special
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Meeting") for such purpose and to recommend a vote approving the issuance of
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shares of Common Stock related to the Transactions and such approval, adoption
and recommendation has not been withdrawn.
D. Each of the Shareholders is the beneficial owner of the number of
shares of Common Stock set forth opposite such Shareholder's name on Schedule I
hereto.
E. Upon gaining Shareholder Approval, the Tender Offer will be completed,
the Exchangeable Notes will be exchanged for the Company's 8.625% Senior
Subordinated Convertible Notes ("Convertible Notes"), and any unexercised
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Warrants will be cancelled.
F. As an additional inducement to the Purchaser to enter into the
Transaction, each of the Shareholders have agreed to vote in favor of the
Transaction on the terms set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Voting of Shares. Each of the Shareholders covenants and agrees
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with each other Shareholder and the Purchaser, to be present at or otherwise
cause its Shares to be counted as present for purposes of a quorum and to vote,
by proxy or in person, such number of
Shares that may be voted by such Shareholder in favor of the Transaction at any
meeting (whether the Special Meeting or otherwise and whether or not adjourned
or postponed). The Shareholder agrees, during the period commencing on the date
hereof and ending on the earlier of the Shareholder Approval and the termination
of this Agreement, not to, and not to permit any of its wholly-owned affiliates
to, vote or execute any written consent in lieu of a shareholders meeting or
vote of the Company, if such consent or vote by the Shareholders would be
inconsistent with or frustrate the purposes or terms of this Voting Agreement or
the Purchase Agreement.
In furtherance and not in limitation of the foregoing, each of the
Shareholders hereby grants to, and appoints, each of Xxxxxxx Xxxxxxxx and Xxxx
Xxxxxx, individually, its irrevocable proxy and attorney-in-fact (with full
power of substitution) to vote the Shares as indicated in this Voting Agreement.
The Shareholder intends this proxy to be irrevocable until the termination of
this Agreement and coupled with an interest and will take such further action
and execute such other instruments as may be necessary to effectuate the intent
of this proxy.
Each of the Shareholders hereby revokes any and all previous proxies
with respect to its Shares or any other voting securities of the Company that
may relate to the voting of its Shares in accordance with the provisions of this
Section 1.
The term "Shares" as used herein shall mean any and all shares of the
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capital stock of the Company (including Common Stock) which carry voting rights
(including any voting rights which arise by reason of default) now owned or
subsequently acquired by a Shareholder through purchase, gift, stock splits,
stock dividends and exercise of stock options.
2. Restriction on Transfer, Proxies and Non-Interference. Except as
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contemplated by this Voting Agreement, each Shareholder agrees not to, directly
or indirectly, (i) offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to, or consent to the offer for sale,
transfer, tender, pledge, encumbrance, assignment or other disposition (each, a
"Disposition") of, any or all of the Shares or any interest therein; provided,
however, that a Disposition shall be permitted if, prior to or simultaneously
with such Disposition, the transferee shall execute an amendment to this
Agreement agreeing to be bound by all of its terms and conditions; (ii) grant
any proxies or powers of attorney, deposit any Shares into a voting trust or
enter into a voting agreement with respect to any shares; or (iii) take any
action that would make any representation or warranty of the Shareholder
contained herein untrue or incorrect, or have the effect of preventing or
disabling the Shareholder from performing the Shareholder's obligations pursuant
to this Voting Agreement.
3. Representations and Warranties of the Shareholder. The
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Shareholder represents and warrants to the Company as follows:
a. Schedule I sets forth the number of Shares of which the
Shareholder is the record or beneficial owner. The Shareholder is the lawful
owner of such Shares and has the sole power to vote (or cause to be voted) the
Shares as set forth in this Agreement. Except as set forth on such Schedule I,
neither the Shareholder nor any of its wholly owned affiliates owns or holds any
rights to acquire any additional shares of any class of Shares or
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other securities of the Company or any interest therein or any voting rights
with respect to any additional Shares or any other securities of the Company.
b. This Agreement has been duly executed and delivered by the
Shareholder.
c. This Agreement constitutes the valid and binding agreement
of the Shareholder, enforceable against the Shareholder in accordance with its
terms.
4. Termination. This Agreement shall terminate on the earlier to
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occur of (i) Shareholder Approval of the Transaction, (ii) the date on which a
vote of the shareholders of the Company is taken on the Transactions and less
than a majority of such shareholders vote to approve the Transactions, (iii) the
date as of which the parties hereto terminate this Voting Agreement by written
consent, or (iv) December 31, 2000.
5. No Revocation. The voting agreements contained herein are
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coupled with an interest and may not be revoked prior to termination in
accordance with Section 3.
6. General.
a. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Colorado, without regard
to any principles of conflicts of law.
b. Notices. All notices, requests, demands and other
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communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or by facsimile transmission (with subsequent
letter confirmation by mail) or three days after being mailed by certified or
registered mail, postage prepaid, return receipt requested, to the parties,
their successors in interest or their assigns at the following addresses, or at
such other addresses as the parties may designate by written notice in the
manner aforesaid:
If to the Shareholders: ATTN: [Shareholder Name]
c/o EFTC Corporation
0000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Purchaser: Xxxxxx-XXXX Funding, L.L.C.
c/x Xxxxxx Capital Partners
0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx
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with a copy to: Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxx, Esq.
c. Entire Agreement. This Agreement contains the entire
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understanding among the parties hereto and supersedes any prior understandings
and agreements, either oral or written, between or among the parties hereto
relating to the subject matter hereof.
d. Equitable Remedies. In addition to legal remedies, in
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recognition of the fact that remedies at law may not be sufficient, the parties
(and their permitted successors and assigns) shall be entitled to equitable
remedies for breaches or defaults hereunder, including, without limitation,
specific performance and injunction.
e. Amendment. No amendment, modification or termination of any
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provision of this Voting Agreement shall be valid unless in writing and signed
by the Purchaser, the Company and Shareholders.
f. Binding Agreement: Successors and Assigns. This Agreement
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shall be binding upon the parties hereto and their respective successors and
legal representatives; provided, however, that the rights and obligations of the
Purchaser under this Voting Agreement shall not be assigned to any party other
than (i) to a transferee of the Purchaser as permitted under the Purchase
Agreement, or (ii) with the consent of the Shareholders.
g. Counterparts. This Voting Agreement may be executed in
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several counterparts, and as so executed shall constitute one agreement, binding
on all of the parties hereto, notwithstanding that all the parties are not a
signatory to the original or the same counterparts.
h. No Waiver; Cumulative Remedies. No failure or delay on the
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part of any party in exercising any right, power or remedy hereunder shall,
except to the extent expressly provided herein, operate as a waiver hereof; nor
shall any single or partial exercise of any right, power or remedy preclude any
other future exercise thereof or the exercise of any other right, power or
remedy hereunder. The remedies provided herein are cumulative and not exclusive
of any remedies provided by law.
i. Severability. The provisions of this Voting Agreement are
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severable, and if any clause or provision of this Voting Agreement shall be held
invalid or unenforceable in whole or in part in any jurisdiction, then such
clause or provision shall, as to such jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without in any manner affecting the
validity or enforceability of such clause or provision in any other jurisdiction
or the remaining provisions hereof in any jurisdiction.
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IN WITNESS WHEREOF, this Voting Agreement has been executed by the parties
hereto as of the day and year first above written.
Numbers of Shares: Shareholders:
__________________________ _____________________________
Xxxxx X. Xxxxxxxx, Xx.
__________________________ _____________________________
Xxxxxxx X. Xxxxxxxx
__________________________ _____________________________
Xxxxxx Xxxxxx
__________________________ _____________________________
Xxxxxxx X. Xxxxxxx
__________________________ _____________________________
Xxxxxx X. Xxxx
__________________________ _____________________________
Xxxxxxx Xxxx
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__________________________ _____________________________
Xxxxxx X. Xxxxxxx
__________________________ _____________________________
Xxxxx Xxxxxxxx, Xx.
__________________________ _____________________________
Xxxxx Xxxxxxxx
__________________________ _____________________________
Xxxx Xxxxxxxx
__________________________ _____________________________
Xxx Xxxxxxxx
__________________________ _____________________________
Xxxxx XxXxxxxxx
__________________________ _____________________________
Xxxxxx XxXxxxxx
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Xxxxxx-XXXX Funding, L.L.C.
By: _____________________________
Name:
Title:
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