1
---------------------------
PAGE 9 OF 38 PAGES
---------------------------
Exhibit B
---------
AGREEMENT dated as of August 26, 1997 among EFI Electronics
Corporation, Inc., a Delaware corporation (the "Company"), ▇▇▇▇▇▇▇ Incorporated,
a Connecticut corporation (the "Investor") and the stockholders listed on
Exhibit A hereto (the "Stockholders").
WHEREAS, Investor desires to acquire from the Company, and the
Company desires to sell to the Investor, Common Stock of the Company
representing at least 20% (the "20% Position") of the outstanding Common Stock
of the Company giving effect to the issuance of shares to the Investor
hereunder, upon the terms and subject to the conditions set forth in this
agreement (the "Agreement"); and
WHEREAS to minimize the risk to the Investor that its 20%
Position will be diluted by subsequent issuances of shares of Company Common
Stock for employee stock options and similar issuances, the Company is issuing
to Investor a warrant to purchase up to an additional 10% of the shares of
Common Stock of the Company provided such warrant may be exercised only to
offset the effect of such dilution.
NOW THEREFORE, in consideration of the mutual agreements
contained herein, the parties hereby agree as follows:
1. Upon the terms and subject to the conditions of the
Agreement, the Company is hereby selling to the Investor and the Investor is
hereby purchasing from the Company, 1,054,044 shares of its Common Stock (the
"Investor Shares") at a price of $1.6867 per Common Share, for an aggregate
purchase price of $1,777,856 (the "Purchase Price").
2
---------------------------
PAGE 10 OF 38 PAGES
---------------------------
2. The closing of this transaction (the "Closing") is being
held at the offices of ▇▇▇▇▇▇▇, Parr, Waddoups, ▇▇▇▇▇ & ▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ on August 26, 1997. At the Closing:
(a) The Company is delivering to the Investor one or
more certificates for the Investor Shares, registered in the name of the
Investor and bearing the legend set forth on Schedule 2(a) hereto; and
(b) The Investor is delivering to the Company the
Purchase Price at its option by certified or official bank check or by wire
transfer to an account of the Company as previously designated by it.
(c) The Company is delivering to the Investor the
Company's warrant expiring five years after the date hereof to purchase up to
527,022 shares of the Company's Common Stock (such number of shares being equal
to 10% of the Company's outstanding Common Stock after giving effect to the
issuance of the Investor Shares) at $1.6867 per share (the "Warrant") such
Warrant to be exercisable by Investor only to the extent necessary to offset
dilution of the Investor's 20% Position as a result of other issuances of shares
of Common Stock by the Company. The shares of Common Stock issued to Investor
pursuant to the Warrant shall be referred to herein as the Warrant Shares. The
Warrant shall have the terms and condition set forth in Exhibit B.
3. The Company represents and warrants to the Investor as follows:
3
---------------------------
PAGE 11 OF 38 PAGES
---------------------------
(a) The Company is duly organized and validly existing
under the laws of the state of Delaware and has the requisite power and
authority to enter into and perform this Agreement.
(b) The board of directors of the Company has
authorized the execution and delivery of this Agreement by the Company and has
approved the consummation of the transaction contemplated hereby. No approval of
the shareholders of the Company is required under the laws of Delaware or the
requirements of NASDAQ.
(c) The Company is duly authorized to execute, deliver
and perform this Agreement and the Warrant; this Agreement and the Warrant have
each been duly executed and delivered by it; and each of this Agreement and the
Warrant is a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms.
(d) The authorized capital stock of the Company
consists of 20,000,000 shares of Common Stock, par value $.0001 per share (the
"Common Stock"). As of the date hereof, 4,216,174 shares of Common Stock are
issued and outstanding, and 700,000 shares of Common Stock are reserved for
issuance upon exercise of stock options. All outstanding shares of Common Stock
of the Company have been duly authorized and validly issued and are fully paid
and non-assessable. The Investor Shares, when issued and delivered in accordance
with the terms hereof, will be duly authorized, validly issued, fully paid and
non-assessable and will constitute at least 20% of the outstanding shares of the
4
---------------------------
PAGE 12 OF 38 PAGES
---------------------------
Common Stock Company giving effect to the issuance of the Investor Shares.
(e) The Company has delivered to the Investor (i) the
annual report on Form 10-K for its fiscal year ended ▇▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇▇
"▇▇▇▇▇▇▇ ▇▇-▇"), (▇▇) its proxy statement dated June 19, 1997, and (iii) all of
its other reports and statements filed with the Securities and Exchange
Commission since March 31, 1995 (collectively, the "SEC Filings"). As of its
filing date, each such SEC Filing did not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading. The audited consolidated financial statements and
unaudited consolidated interim financial statements of the Company included in
the SEC Filings fairly present, in conformity with generally accepted accounting
principles applied on a consistent basis, the consolidated financial position of
the Company and its consolidated subsidiaries as of the dates thereof and their
consolidated statements of operations and of cash flows for the periods then
ended (subject to normal year end adjustments in the case of any unaudited
interim financial statements).
(f) Except for the individuals or entities who are
listed on Schedule 3(e) hereto, no person or entity owns of record, or to the
knowledge of the Company has beneficial ownership of, or has the right to
acquire, in excess of 5% of the Company's currently outstanding shares of Common
Stock.
5
---------------------------
PAGE 13 OF 38 PAGES
---------------------------
4. The Investor represents and warrants to the Company that it
is duly authorized to execute, deliver and perform this Agreement; this
Agreement has been duly executed and delivered by it; and this Agreement is a
valid and binding agreement of the Investor, enforceable against the Investor in
accordance with its terms. The Investor is acquiring the Investor Shares for
investment purposes only for its own account and not with a view to the offer,
sale or distribution thereof, except for distributions which will be registered
pursuant to the Securities Act of 1933 or exempt from registration thereunder.
The Investor has had access to information pertaining to the Company and has
sufficient knowledge and experience in financial and business matters so as to
be capable of evaluating the merits and risks of its investment in the Company,
and is capable of bearing the economic risks of such investment.
5. The Company agrees that it will (a) invest no less than an
amount equal to the proceeds of the sale of the Investor Shares to fund
operating requirements of the business, including, but not limited to, working
capital requirements and fixed capital investments and (b) shall not make any
payments in respect of existing indebtedness (other than the Credit and Security
Agreement with Norwest Business Credit, Inc.) of the Company prior to any
required payment date with respect thereto; provided, however, that the Company
may refinance any existing indebtedness on more favorable terms.
6. The Company will promptly cause ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ of the
Investor (the "Investor Director"), to be
6
---------------------------
PAGE 14 OF 38 PAGES
---------------------------
appointed to the Company's Board of Directors (the "Board") as an additional
member of the Board which will then be comprised of 5 directors including the
Investor Director. An individual (who shall be a senior officer of the Investor
or of one of its subsidiaries) proposed by the Investor as a successor to the
Investor Director shall be appointed to fill any vacancy of the Investor
Director. Subject to this Agreement, the Company will re-nominate the Investor
Director to stand for election at the 1998 Annual Meeting of Shareholders or
earlier annual meeting if required by the By-Laws of the Company and Delaware
law and at all subsequent annual meetings provided that Investor holds in excess
of 10% of the outstanding shares of Common Stock of the Company. During the
period the Company is required to re-nominate the Investor Director, it shall
not permit the Board to consist of more than five directors. From the date
hereof until the appointment of the Investor Director to the Board, the Investor
shall receive prior notice of, and shall have the opportunity to have the
Investor Director observe all meetings, whether in person or by telephone, or
other proceedings (including any consent solicitations) of the Board. The
Investor shall be entitled to receive copies of all agendas and minutes prepared
with respect to any such meetings and all other documents and materials
distributed to any Board members. In the event that the Investor beneficially
owns less than 5% of the outstanding shares of Common Stock, the Company may at
such time request the Investor Director to resign from the Board, and within
five days following such request, the Investor Director
7
---------------------------
PAGE 15 OF 38 PAGES
---------------------------
shall resign from the Board, provided, however; if the failure to meet the 5%
Condition is not caused by the sale, transfer or disposition of shares of Common
Stock by the Investor, then the Investor shall, for a thirty day period after
receiving notice from the Company that such 5% Condition has not been met, have
the right to acquire, in the open market or in privately negotiated
transactions, additional shares of Common Stock in order to satisfy the 5%
Condition.
7. For the purposes of Sections 7 and 8 hereof the term
Applicable Investor Position shall mean the percentage of the outstanding
capital stock of the Company owned by Investor immediately prior to an issuance
by the Company or a transfer by the Stockholders. For so long as the Investor
beneficially owns at least 10% of the Common Stock, if the Company issues any
additional stock of the Company, or securities of the Company convertible into,
or exercisable or exchangeable for, such stock or representing rights to acquire
such stock effected in a private placement or privately negotiated transaction
for the purpose of raising capital (exclusive of shares issued pursuant to
director or employee benefit plans or in connection with acquisitions or other
reorganizations) and, as a result thereof any person would own in excess of 10%
of the stock of the Company, then the Company shall offer to issue to Investor,
on 30 days notice and the same terms and conditions, such number of securities
of the Company as will permit Investor to maintain the Applicable Investor
Position, or, if the percentage interest of such person would be higher than the
Applicable Investor
8
---------------------------
PAGE 16 OF 38 PAGES
---------------------------
Position, the percentage interest which would be attained by such person.
8. For so long as the Investor beneficially owns at least 10%
of the Common Stock, each of the Stockholders agrees that Investor shall have a
right of first refusal on any or all shares of Common Stock proposed to be sold
or transferred by Stockholders or their estates. A Stockholder desiring to sell
or transfer shares of Common Stock of the Company ("Stockholder Shares") shall
first give written notice to Investor specifying the terms (the "Terms Notice")
relating to the proposed sale of the Stockholder Shares. Investor shall have
five business days after receipt of such notice to advise the Stockholder so
desiring to sell or transfer such shares that Investor agrees to purchase the
Stockholder Shares on the terms specified in the Terms Notice. In the event that
any of the consideration specified in the Terms Notice consists of non-cash
consideration, the Investor may pay, in lieu of such non-cash consideration an
amount in cash equal to the fair market value of such non-cash consideration.
The closing of the purchase by the Investor of the Stockholder Shares shall take
place at the office of Investor on the later of (a) 30 days after Investor's
notice to the Stockholder or (b) ten days after obtaining any required
regulatory consents to such purchase. The provisions of this Section 8 shall not
prohibit a Stockholder (a) from transferring shares of Common Stock without
consideration for estate planning purposes, provided that any such transferee
agrees in writing to be bound by the provisions of this Section 8 with respect
to
9
---------------------------
PAGE 17 OF 38 PAGES
---------------------------
subsequent transfers or (b) from selling in open market transactions not in
excess of 100,000 shares of Company Common Stock in any 90 day period.
9. (a) During the Restricted Period (as hereafter defined)
without the Company's prior written consent, the Investor agrees not to: (i)
directly or indirectly acquire through open market purchases shares which, when
added to the shares held by Investor, would exceed 22 percent (22%) of the
outstanding shares of Common Stock of the Company; (ii) make, or in any way
participate, directly or indirectly, in any "solicitation" (as such term is used
in the proxy rules of the Securities and Exchange Commission as in effect on the
date hereof) of proxies or consents; (iii) form, join or in any way participate
in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange
Act of 1934) with respect to the Common Stock, other than groups consisting
solely of the Investor and its affiliates; or (iv) deposit any shares of Common
Stock in any voting trust or subject the shares of Common Stock to any
arrangement or agreement with respect to the voting of any shares of Common
Stock except as set forth hereunder.
(b) The "Restricted Period" shall be the period from
the date hereof until the third anniversary of the date hereof.
(c) In the event that the Investor shall transfer any
of the shares of Common Stock to any person or entity which is affiliated with
the Investor (an "Affiliate"), such Affiliate shall be bound by all of the
provisions of this Section 10.
10
---------------------------
PAGE 18 OF 38 PAGES
---------------------------
Prior to such a transfer by the Investor, the Affiliate shall execute and
deliver to the Company a valid and binding agreement reasonably satisfactory to
the Company to the effect that the Affiliate is bound by this Section 9.
(d) During the Restricted Period, the Investor agrees
to give the Company prompt written notice following any sale or other transfer
of any shares of Common Stock, whether to an Affiliate or otherwise.
(e) The restrictions contained in this Section 9 shall
terminate in the event that any person acquires in open market purchases more
than 10% of the outstanding stock of the Company or commences a tender or
exchange offer to acquire more than 10% of the stock of the Company.
10. At any time following the one year anniversary of this
Agreement on the Investor's request, the Company shall file a registration
statement (the "Registration Statement") to permit an offering of some or all of
the Investor Shares or Warrant Shares (collectively the "Registrable Shares") or
at the request of the Investor include the Registrable Shares in a registration
statement being filed by the Company. The provisions applicable to such
registration are contained in Exhibit C to this Agreement.
11. All notices or other communications hereunder shall be in
writing and shall be given by registered or certified mail (postage prepaid and
return receipt requested), by an overnight courier service which obtains a
receipt to evidence delivery, or by telex or facsimile transmission (provided
that
11
---------------------------
PAGE 19 OF 38 PAGES
---------------------------
written or electronic confirmation of receipt is provided), addressed as set
forth below:
if to Company, to: EFI Electronics Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, Parr, Waddoups,
▇▇▇▇▇ & Gee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Post ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
if to the Investor to: ▇▇▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
P.O. Box 549
Orange, Connecticut 06477-4024
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President, General
Counsel and Secretary
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
if to the Stockholders
to: ▇▇▇▇▇▇▇ ▇. Swim
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
or such other address as any party may designate to the other in accordance with
the aforesaid procedure.
12. Any provision of this Agreement may be amended or waived,
but only if such amendment or waiver is in writing and is signed, in the case of
an amendment, by each party to this Agreement, or in the case of a waiver, by
the party against whom the waiver is to be effective. No failure or delay by any
party
12
---------------------------
PAGE 20 OF 38 PAGES
---------------------------
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
13. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided that no party may assign, delegate or otherwise transfer any
of its rights or obligations under this Agreement without the prior written
consent of the other party hereto except that Investor may transfer its rights
but not its obligations to an Affiliate.
14. This Agreement shall be governed by and construed in
accordance with the law of the State of Connecticut.
15. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. No provision of
this Agreement is intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
16. The representations and warranties of the parties hereto
contained in this Agreement and in any certificate or other writing delivered
pursuant hereto or in connection herewith shall survive the Closing.
17. Except for any filings by either party made pursuant to
the Securities Exchange Act of 1934, the Company and
13
---------------------------
PAGE 21 OF 38 PAGES
---------------------------
the Investor shall agree on the form and content of any public announcements
which shall be made concerning this Agreement or the transactions contemplated
hereby, and neither the Company nor the Investor shall make any such public
announcement without the consent of the other; provided that if, in the
reasonable opinion of its counsel, a party is required to make any such
disclosure by law, then such party shall, to the extent practicable, prior to
making such disclosure, consult with the other party and provide it with a copy
of any proposed written disclosure (or discuss with representatives of such
other party in full detail the substance of any proposed oral disclosure) and
use its best efforts to amend such written or oral disclosure as such other
party may reasonably request.
18. This Agreement and the exhibits hereto constitutes the
entire agreement among the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, among the parties with respect to the subject matter of this Agreement.
No representation, inducement, promise, understanding, condition or warranty not
set forth herein has been made or relied upon by any party hereto. All schedules
and exhibits hereto constitute part of this Agreement and are expressly
incorporated herein.
19. Each of the parties hereto agrees that any material breach
by it of any provision of this Agreement would irreparably injure the other
party and that money damages would be an inadequate remedy therefor.
Accordingly, each of the parties hereto agrees that the other party shall be
entitled to
14
---------------------------
PAGE 22 OF 38 PAGES
---------------------------
one or more injunctions enjoining any such breach or requiring specific
performance of this Agreement and consents to the entry thereof, this being in
addition to any other remedy to which the non-breaching party is entitled at law
or in equity.
20. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be invalid, inoperative or unenforceable, it
shall be construed, to the greatest extent permissible, in a manner which shall
render it valid and enforceable, and any limitation on the scope or duration of
any such revision necessary to make it valid and enforceable shall be deemed to
be a part thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Investment
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
EFI ELECTRONICS CORPORATION
By: ------------------------
▇▇▇▇▇▇▇ INCORPORATED
By: ------------------------
STOCKHOLDERS
By: -------------------------
-------------------------
-------------------------
---------------------------
PAGE 23 OF 38 PAGES
---------------------------
EXHIBIT A
SPECIFIED STOCKHOLDERS
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (Including any beneficial
ownership thereof).
▇▇▇▇▇▇▇ ▇. Swim (Including any beneficial
ownership thereof).
---------------------------
PAGE 24 OF 38 PAGES
---------------------------
EXHIBIT B
WARRANT
WARRANT AGREEMENT, dated August 26, 1997 by and between EFI
Electronics Corporation, Inc., a Delaware corporation (the ("Corporation"), and
▇▇▇▇▇▇▇ Incorporated, a Connecticut corporation (the "Warrant Holder").
WHEREAS, the Corporation and the Warrant Holder have entered
into a Stock Purchase Agreement, dated August 26, 1997, (the "Acquisition
Agreement") which provides, among other things, for the Corporation to issue to
the Warrant Holder the Warrants provided for herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements set forth herein and in the Acquisition
Agreement, the parties hereto agree as follows:
Section 1. Definitions. The terms defined in this Section,
whenever used in this Agreement, shall, unless the context otherwise requires,
have the respective meanings herein specified.
"Acquisition Agreement" shall mean the Stock Purchase
Agreement, dated August 26, 1997, between the Corporation and the
Warrant Holder.
"Agreement" shall mean this Warrant Agreement.
"Closing" shall have the meaning ascribed to it in Section 3A.
"Closing Date" shall have the meaning ascribed to it in
Section 3A.
---------------------------
PAGE 25 OF 38 PAGES
---------------------------
"Common Stock" shall mean the Corporation's authorized Common
Stock, as constituted on the date hereof, and any stock into which such
stock may thereafter be changed.
"Corporation" shall mean EFI Electronics Corporation, Inc., a
Delaware corporation, and any successor corporation by merger,
consolidation or otherwise.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect at the time.
"Warrant Exercise Price", at any date herein specified, shall
mean $1.6867 per share of Common Stock to be paid by the Warrant Holder
upon the issuance of each Common Share pursuant to the exercise of the
Warrant, subject to the adjustments to the Warrant Exercise Price
described herein.
Warrant Holder shall mean ▇▇▇▇▇▇▇ Incorporated any successor
corporation to any of the foregoing by merger or consolidation or
otherwise.
Section 2. Issuance of Warrants. The Corporation hereby issues
to the Warrant Holder Warrants to acquire up to 527,022 shares of Common Stock
at a price per share equal to the Warrant Exercise Price.
Section 3. Exercise of Warrants.
A. Manner of Exercise. The Warrants shall be exercisable from
time to time during the five-year period from the date hereof only for such
number of shares of Common Stock as may be necessary for the Warrant Holder to
maintain ownership of
3
---------------------------
PAGE 26 OF 38 PAGES
---------------------------
20% of the Company's Common Stock in the event of other issuances of Common
Stock by the Company. In the event that the Warrant Holder wishes to exercise
any of the Warrants, the Warrant Holder shall give a written notice to the
Corporation of its intention to exercise Warrants, specifying the number of
shares of Common Stock to be purchased and the date of the closing of such
purchase (the "Closing Date" or the "Closing"); provided, that, the Closing Date
shall not be less than five nor more than ten business days after the date on
which such notice is delivered. At any Closing, (i) the Warrant Holder shall pay
the aggregate Warrant Exercise Price for shares of Common Stock to be issued
pursuant to the exercise of the Warrants by delivery to the Corporation of the
amount of the Warrant Exercise Price times the number of shares to be purchased
and (ii) the Corporation will deliver to the Warrant Holder a certificate or
certificates representing the shares so purchased in the denominations
designated by the Warrant Holder in its notice of exercise.
B. Payment of Taxes, etc. All shares of Common Stock issuable
upon the exercise of the Warrants shall be validly issued, fully paid and
non-assessable and the Corporation shall pay all expenses in connection with,
and all taxes (other than taxes based upon the income of the Warrant Holder) and
other governmental charges that may be imposed in respect of, the issue or
delivery thereof. The Corporation shall not be required, however, to pay any tax
or other charge imposed in connection with any transfer involved in the issue of
any stock certificate
4
---------------------------
PAGE 27 OF 38 PAGES
---------------------------
in any name other than that of the Warrant Holder, and in
such case the Corporation shall not be required to issue or deliver any stock
certificate until such tax or other charge has been paid or it has been
established to the Corporation's satisfaction that no such tax or other charge
is due.
C. Fractional Shares. The Corporation shall not be required to
issue a fractional share of stock upon any exercise of the Warrants. As to any
final fraction of a share which the holder of the Warrants would otherwise be
entitled to purchase upon such exercise, the Corporation shall pay a cash
adjustment in respect of such final fraction in an amount equal to the same
fraction of the average of the closing bid and asked prices per share of Common
Stock on the business day which next precedes the day of exercise.
Section 4. Adjustment of Warrant Exercise Price and Number of
Shares. In case the Corporation shall at any time after the date of this
Agreement (i) declare a dividend or distribution on the Common Stock payable in
shares of Common Stock, (ii) subdivide or reclassify the outstanding Common
Stock into a greater number of shares, (iii) combine or reclassify the
outstanding Common Stock into a smaller number of shares, or (iv) issue any
shares of its capital stock or other securities by reclassification of the
Common Stock, the Warrant Exercise Price in effect at the time of the record
date for such dividend or distribution or of the effective date of such
subdivision, combination or reclassification, and the number and kind of
5
---------------------------
PAGE 28 OF 38 PAGES
---------------------------
shares of Common Stock issuable on such date shall be proportionately adjusted
so that the Warrant Holder shall be entitled to receive the aggregate number and
kind of shares of Common Stock which, if the Warrants had been exercised
immediately prior to such date, it would have owned upon such exercise and been
entitled to receive by virtue of such dividend, distribution, subdivision,
combination or reclassification. Such adjustment shall be made successively
whenever any event listed above shall occur.
Section 5. Notices to the Warrant Holder. Whenever the number
of shares of Common Stock and the Warrant Exercise Price, shall be adjusted
pursuant to Section 4, the Corporation shall forthwith deliver to the Warrant
Holder a certificate signed by the Chief Financial Officer of the Corporation
setting forth, in reasonable detail, the event requiring the adjustment, its
calculation of the adjustment and specifying the number of shares of Common
Stock issuable hereunder and any change in the Warrant Exercise Price thereof,
after giving effect to such adjustment or change.
Section 6. Reservation of Common Stock; Registration with or
Approval of Any Governmental Authority. The Corporation shall at all times
reserve and keep available for issue upon the exercise of these Warrants such
number of its authorized but unissued shares of Common Stock as will be
sufficient to permit the exercise in full of these Warrants. All shares of
Common Stock which shall be so issuable shall, when issued upon exercise
6
---------------------------
PAGE 29 OF 38 PAGES
---------------------------
of these Warrants, be duly and validly issued and fully paid and non-assessable.
If any shares of Common Stock required to be reserved for
issue upon exercise of this Option require registration with any governmental
authority under any Federal or State law before such shares may be so issued,
the Corporation will in good faith and as expeditiously as possible and at its
expense endeavor to cause such shares to be duly registered; provided that the
Warrant Holder shall take such steps, including making such representations, as
may be required of the Warrant Holder in order to cause such shares to be duly
registered; provided however, that nothing herein shall require the Corporation
to comply with the registration requirements of Section 5 of the Securities Act.
Section 7. Carrying Out of Agreement. The Corporation will
not, by any voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by the
Corporation, but will at all times in good faith assist in carrying out all of
the provisions of this Agreement.
Section 8. Notices. All notices and other communications
given or made pursuant hereto shall be given in the manner set forth in Section
11 of the Acquisition Agreement.
Section 9. Limitation of Liability. No provisions hereof, in
the absence of affirmative action by the Warrant Holder to purchase shares of
Common Stock, and no mere
7
---------------------------
PAGE 30 OF 38 PAGES
---------------------------
enumeration herein of the rights or privileges of the Warrant Holder hereunder,
shall give rise to any liability of the Warrant Holder for the Warrant Exercise
Price or as a stockholder of the Corporation, whether such liability is asserted
by the Corporation or by creditors of the Corporation. This Agreement shall not
entitle the Warrant Holder to any of the rights of a Shareholder of the
Corporation.
Section 10. Assignment. These Warrants and the Warrant
Holder's rights hereunder may be transferred by the Warrant Holder, in whole or
in part to a subsidiary of the Warrant Holder. The obligations of the
Corporation hereunder shall not be assignable and any such purported assignment
shall be void.
Section 11. Governing Law. These Warrants shall be governed
by and construed in accordance with the laws of the State of Connecticut.
Section 12. Amendment. Any term of the Warrant Agreement may
be amended with the written consent of the Corporation and the Warrant Holder
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Warrant Agreement to be duly executed by their officers thereunto duly
authorized.
EFI ELECTRONICS CORPORATION, INC.
By -------------------------
8
---------------------------
PAGE 31 OF 38 PAGES
---------------------------
▇▇▇▇▇▇▇ INCORPORATED
By -------------------------
---------------------------
PAGE 32 OF 38 PAGES
---------------------------
EXHIBIT C
REGISTRATION RIGHTS
The following provisions will apply to the Company's
obligation under Section 10 of the Agreement.
(a) At any time following the one year anniversary of this
Agreement on the Investor's request, the Company will file up to two
registration statements (the "Registration Statements") to permit an offering of
some or all of the Registrable Shares provided that number of shares requested
to be included in each such Registration Statement represent at least 5% of the
Company's outstanding shares of Common Stock. All costs of preparing and filing
the Registration Statement shall be paid by the Company. In addition, the
Company shall pay all other costs in connection with such registration,
including but not limited to, any printing and distribution costs, fees and
expenses of compliance with securities and blue sky laws, and legal and
accounting fees and expenses for the Company. The Company shall not be obligated
to pay any underwriting fees, discounts or commissions attributable to the sale
of some or all of the Investor Shares or any expenses incurred by the Investor
in connection with the sale of some or all of the Investor Shares. The Company
shall not be obligated to effect more than one such registration in any 12-month
period, it being understood that registration will not count for these purposes
until it has become effective. Unless the Investor shall consent in writing, no
other party, including the Company, shall be permitted to offer securities under
such registration.
2
---------------------------
PAGE 33 OF 38 PAGES
---------------------------
(b) If the Company at any time proposes to file on its behalf
and/or on behalf of any of its security holders a Registration Statement (other
than a Registration Statement filed pursuant to paragraph (a) of this Exhibit C)
under the Securities Act on Form ▇-▇, ▇-▇ or S-3 (or on any other form for the
general registration of securities to be sold for cash that would permit the
registration of Registrable Shares), it will each such time give written notice
to the Investor at least 30 days before the filing with the Commission of such
Registration Statement, which notice shall set forth the intended method of
disposition of the securities proposed to be registered. The notice shall offer
to include in such filing such amount of Registrable Shares as the Investor may
request but not less than 1% of the Company's outstanding shares of Common
Stock. If the Investor wishes to have Registrable Shares registered pursuant to
this paragraph (b), it shall advise the Company in writing within 20 days after
the date of receipt of such offer from the Company, setting forth the amount of
Registrable Shares for which registration is requested. If the managing
underwriter of a proposed offering of securities by the Company shall advise the
Company in writing that, in the reasonable opinion of the managing underwriter,
the distribution of the Registrable Shares requested by the Investor to be
included in the Registration Statement concurrently with securities being
registered for sale by the Company would materially adversely affect the
distribution of such securities by the Company, then the Company shall so advise
the Investor and
3
---------------------------
PAGE 34 OF 38 PAGES
---------------------------
the number of Registrable Shares that are entitled to be included in the
registration and underwriting shall be allocated first to the Company. Any
Registrable Shares excluded or withdrawn from such underwriting shall be
withdrawn from such registration. Except as otherwise provided in paragraph (a)
of this Exhibit C, all expenses of any such registration shall be borne by the
Company. Any obligation of the Company to effect a registration pursuant to this
paragraph (b) shall be conditioned upon the Investor entering into an
underwriting agreement with the Company and the managing underwriters of the
registered offering of the type described in clause (iv) of paragraph (c) of
this Exhibit C.
(c) Whenever the Company is required by the provisions of
Section 10 of the Agreement to effect the registration of the Registrable
Shares, the Company will, as promptly as practicable:
(i) prepare and promptly file with the Commission a
Registration Statement with respect to the Registrable Shares, and prepare and
file with the Commission such amendments to the Registration Statement and the
prospectus used in connection therewith as may be required prior to
effectiveness and thereafter to keep the Registration Statement effective for a
period of not less than 120 days or such shorter period which will terminate
when all shares covered by such Registration Statement have been sold;
(ii) use its best efforts to register or qualify the
Registrable Shares under such state securities or blue sky
4
---------------------------
PAGE 35 OF 38 PAGES
---------------------------
laws or such jurisdictions as shall be reasonably appropriate for distribution
of the Registrable Shares;
(iii) advise the Investor, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance of any stop order by
the Commission or any state securities commission or agency suspending the
effectiveness of such Registration Statement or the initiation of or threatening
of any proceeding for that purpose, and use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order should
be issued;
(iv) together with the Investor, enter into such
agreements (including customary underwriting agreements and indemnification
agreements) and deliver such documents and certificates as each party or the
underwriter may reasonably request;
(v) furnish to the Investor, prior to filing the
Registration Statement, if requested, copies of such Registration Statement as
proposed to be filed, and thereafter furnish to the Investor such number of
copies of such Registration Statement and each amendment thereto (in each case
including all exhibits thereto), the prospectus included in such Registration
Statement (including each preliminary prospectus), and such other documents as
the Investor may reasonably request in order to facilitate the disposition of
the Registrable Shares;
(vi) use its best efforts to cause all such
Registrable Shares to be listed on each securities exchange or
5
---------------------------
PAGE 36 OF 38 PAGES
---------------------------
inter-dealer quotation system on which similar securities issued by the Company
are then listed, provided that the applicable listing requirements are
satisfied; and
(vii) use its best efforts to obtain a cold comfort
letter from the Company's independent public accountant's and an opinion of
outside counsel to the Company, each in customary form and covering such matters
of the type customarily covered by cold comfort letters or opinions of counsel.
---------------------------
PAGE 37 OF 38 PAGES
---------------------------
SCHEDULE 2(a)
STOCK CERTIFICATE LEGENDS
(Restricted Shares)
-------------------
The shares represented by this certificate have been acquired for investment
purposes only and have not been registered under the Securities Act of 1933, as
amended, or registered or qualified under any applicable state securities laws.
Such shares may not be sold, assigned or otherwise transferred unless so
registered and qualified or unless, in the opinion of counsel to the owner
hereof named on this certificate, which opinion is reasonably acceptable to the
Corporation, an exemption from registration and any such qualification is
available.
---------------------------
PAGE 38 OF 38 PAGES
---------------------------
SCHEDULE 3(e)
5% BENEFICIAL OWNERS
The information set forth on page 8 of the Company's Proxy
Statement dated June 19, 1997, under the caption "Ownership of Company Stock,"
regarding each shareholder known by the Company to be the beneficial owner of
more than five percent (5%) of the Company's Common Stock, is incorporated
herein by reference.