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Exhibit 4.4.2
THIRD AMENDMENT TO RIGHTS AGREEMENT
This Third Amendment to Rights Agreement is dated as of May 3, 2001
between EFTC Corporation, a Colorado Corporation ("EFTC") and Computershare
Trust Company, Inc., formally known as American Securities Transfer & Trust,
Inc. (the "Rights Agent"), and is being executed by the Rights Agent at the
direction of EFTC.
RECITALS
WHEREAS, EFTC and the Rights Agent are parties to a Rights Agreement
dated as of February 25, 1999, as amended on March 30, 2000 and July 14, 2000
(the "AMENDED RIGHTS AGREEMENT") and wish to amend same.
WHEREAS, EFTC, Parent Holding Corp., a Delaware corporation ("PARENT"),
and K*TEC Electronics Holding Corporation, a Delaware corporation ("K*TEC"),
intend to enter into an Agreement and Plan of Merger (the "MERGER AGREEMENT")
pursuant to which K*TEC and EFTC will effect a business combination upon the
terms and subject to the conditions of the Merger Agreement;
WHEREAS, on the date hereof, the Board of Directors of EFTC resolved to
amend the Amended Rights Agreement to render the Rights inapplicable to the
execution of, and transactions contemplated by, the Merger Agreement; and
WHEREAS, Section 27 of the Amended Rights Agreement permits the Company
from time to time to supplement and amend the Amended Rights Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions and covenants herein contained, the parties agree as follows:
1. Section 1 of the Amended Rights Agreement is hereby amended by
adding the following new paragraph at the beginning of Section 1:
"Notwithstanding anything in this Agreement that might otherwise be
deemed to the contrary, (i) neither K*TEC Electronics Holding Corporation
("K*TEC") or any other party to the Agreement and Plan of Merger by and among
EFTC, K*TEC and the other parties thereto dated as of May 3, 2001, as amended
from time to time (the "MERGER AGREEMENT"), Xxxxxx-XXXX Funding, L.L.C.,
Xxxxxx-XXXX Funding II, L.L.C. or any of their Affiliates or Associates shall be
deemed an Acquiring Person and none of the Distribution Date or Triggering Event
shall be deemed to occur, in each such case, by the approval, execution,
delivery or performance of the Merger Agreement, the announcement, commencement
or consummation of the transactions contemplated by the Merger Agreement. No
such event shall entitle or permit the holders of the Rights to exercise the
Rights or otherwise affect the rights of the holders of Rights, including giving
the holders of the Rights the right to acquire securities of any party to the
Merger Agreement and (ii) immediately prior to the Effective Time (as defined in
the Merger Agreement), this Agreement shall terminate and expire, and all Rights
shall become null and
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void with any further action and no holder of such Rights shall have any rights
whatsoever with respect to such Rights, whether under this Agreement or
otherwise."
2. Section 7(a) of the Amended Rights Agreement is hereby amended to
read in its entirety as follows:
(a) Subject to Section 7(e) hereof, the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Rights Certificate, with the form of
election to purchase and the certificate on the reverse side thereof duly
executed, to the Rights Agent at the principal office or offices of the Rights
Agent designated for such purpose, together with payment of the aggregate
Purchase Price with respect to the total number of one-thousandths of a share
(or other securities, cash or other assets, as the case may be) as to which such
surrendered Rights are then exercisable, at or prior to the earlier of (i) the
close of business on February 25, 2009 (the "Final Expiration Date"), (ii) the
time at which the Rights are redeemed as provided in Section 23 hereof or (iii)
immediately prior to the Effective Time (as defined in the Merger Agreement)
(the earlier of (i), (ii) and (iii) being herein referred to as the "Expiration
Date").
3. The Rights Agreement shall not otherwise be supplemented or
amended by virtue of this Amendment, but shall remain in full force and effect.
This Amendment may be executed in one or more counterparts, all of which shall
be considered one and the same amendment and each of which shall be deemed an
original.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to Rights Agreement to be duly executed and attested, all as of the day and year
first above written.
EFTC CORPORATION COMPUTERSHARE TRUST COMPANY, INC. as
Rights Agent
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Vice President Title: Vice President
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT TO RIGHTS AGREEMENT]
