EXHIBIT 10.8
REGISTRATION RIGHTS AGREEMENT
February 27, 2001
The parties to this agreement are MedSource Technologies, Inc. a
Delaware corporation (the "Company") and Thomas Weisel Partners LLC, a Delaware
limited liability company (the "Stockholder").
The Stockholder owns a warrant (the "Warrant") to purchase 525 shares
of the Company's 6.0% Cumulative Convertible Redeemable Preferred Stock, Series
C, par value $.01 per share ("Series C Preferred Stock"). The shares of Series C
Preferred Stock are convertible into shares of the Company's common stock, par
value $.01 per share ("Common Stock"). The shares of Common Stock issuable upon
conversion of the Series C Preferred Stock issuable upon exercise of the Warrant
are the only shares of capital stock of the Company entitled to the rights and
benefits, and subject to the terms and conditions, of this agreement, and are
hereinafter collectively referred to as, the "Shares."
The Company desires to provide to the Stockholders certain rights
regarding the registration of the Shares, all upon the terms and conditions set
forth below.
It is therefore agreed as follows:
1. Certain Definitions. As used in this agreement, the following terms
shall have the meanings provided below:
(a) "Commission" means the United States Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(b) "Holders" means the Stockholders and their respective permitted
transferees who hold Shares.
(c) "Other Securities" means, at any time, those shares of Common
Stock, and of any other class or series of capital stock of the Company or other
securities of the Company representing the right to acquire Common Stock, that
the Company is required to, or has determined to, register pursuant to a
registration statement filed by the Company with the Commission pursuant to this
or any other agreement.
(d) "Person" shall mean any individual, partnership, joint venture,
firm, corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
(e) "Registrable Securities" means the Shares and any other securities
issuable in replacement thereof by way of a recapitalization, exchange, merger,
consolidation, reorganization or other transaction; provided, however, that any
share shall cease to be a
Registrable Security under this agreement when (A) a registration statement with
respect to such share's public sale shall have become effective under the
Securities Act, (B) it has been disposed of as permitted by, and in compliance
with, Rule 144 (or successor provision) promulgated under the Securities Act or
(C) it shall have ceased to be a outstanding.
(f) Registration Expenses" means all expenses incident to the Company's
performance of or compliance with the provisions of section 2 including, without
limitation, all registration, filing and National Association of Securities
Dealers, Inc. fees, all listing fees, all fees and expenses of complying with
securities or blue sky laws (including, without limitation, reasonable fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities hereunder), all word processing,
duplicating and printing expenses, messenger and delivery expenses, the fees and
disbursements of counsel for the Company, and the reasonable fees and expenses
of one counsel on behalf holders (including the Holders) whose whose shares of
Common Stock are included in the registration statement, with such counsel
selected by a majority-in-interest of such holders (according to the number of
shares of Common Stock each such holder is directly or indirectly registering
for sale in such registration statement), and the fees and disbursements of its
independent public accountants, including the expenses of "comfort" letters
required by or incident to such performance and compliance, and any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities; provided, however, that Registration Expenses shall exclude, and the
Holders shall pay, underwriters fees and underwriting discounts and commissions
in respect of the Registrable Securities being registered hereunder as well as
any fees and expenses of counsel to the Holders of the Registrable Securities
hereunder (other than those of the one counsel referred to above).
(g) "Securities Act" means the Securities Act of 1933, and any
subsequent similar federal statute, and the rules and regulations promulgated
thereunder.
2. Piggyback Registration.
2.1 Right to Include Registrable Securities.
(a) Subject to section 2.1(b), if the Company at any time proposes to
register any of its securities under the Securities Act (as defined below) by
registration on Forms SB-2, S-1, S-2, S-3 (but not Forms S-4 or S-8) or any
successor or similar form(s) (except registrations on such or similar forms for
registration of securities in connection with (i) an employee benefit plan or
dividend reinvestment plan or a merger, consolidation or other business
combination, (ii) debt securities that are not convertible into Common Stock, or
(iii) the Company's initial public offering), whether or not for sale for its
own account, it shall, each such time, give written notice to the Holders of its
intention to do so and of the Holders' rights under this section 2 at least 30
days prior to the filing of a registration statement with respect to such
registration with the Commission. Upon the written request of any Holder made
within 20 days after the receipt of that notice, which request shall specify the
Registrable Securities intended to be registered and disposed of by such Holder,
the Company shall, subject to the provisions hereof, use its best
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efforts to include in such registration statement all Registrable Securities
that the Company has been so requested to register by such Holder.
(b) If, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each Holder and upon giving that notice (i) in the case of a
determination not to register, the Company shall be relieved of its obligation
to register any Registrable Securities in connection with such registration (but
not from any obligation of the Company to pay the Registration Expenses (as
defined below) in connection therewith), without prejudice; and (ii) in the case
of a determination to delay registering, the Company shall be permitted to delay
registering any Registrable Securities for the same period as the delay in
registering such other securities.
(c) The Company shall pay all Registration Expenses in connection with
registration of Registrable Securities requested pursuant to this section 2.1.
2.2 Underwriter "Cutbacks" in Piggyback Registrations. Anything in
section 2.1 to the contrary notwithstanding, with respect to any registration
pursuant to which shares are registered pursuant to this section 2 that is being
effected by one or more underwriters, such underwriters shall be designated by
the Company and approved by a majority in interest of the Holders selling
Registrable Securities and Other Securities (which approval shall not be
unreasonably withheld), and if any managing underwriter for the public offering
contemplated by such registration advises the Company in writing that, in such
firm's good faith opinion, the inclusion of all Registrable Securities and Other
Securities proposed to be included in such registration would adversely affect
the offering and sale of all such securities, then all securities proposed to be
sold by the Company for its own account shall be included in such registration
to the extent possible and the number of Registrable Securities and Other
Securities proposed to be included in such registration shall be reduced pro
rata based upon the number of shares of Common Stock owned by each such Person
(other than the Company) and its affiliates (or that each such Person and its
affiliates have the right to acquire) at the time of such registration.
3. Registration Procedures. In connection with the registration of any
Registrable Securities under the Securities Act as provided in section 2, the
Company shall as expeditiously as possible:
(i) prepare and file with the Commission the requisite registration
statement to effect such registration and thereafter use its best efforts to
cause such registration statement to become and remain effective (subject to
clause (ii) below); provided, however, that the Company may discontinue any
registration of its securities that are not Registrable Securities at any time
prior to the effective date of the registration statement relating thereto;
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(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such registration statement
for such period as shall be required for the disposition of all of such
Registrable Securities; provided, however, that, the foregoing notwithstanding,
the Company shall not be required under this item (ii) to maintain the
effectiveness of any such registration statement for longer than 180 days, or
such longer period beyond such 180 days (up to an aggregate of 270 days) as may
be available without requiring the Company to file any financial statements as
of a later date and for a later period than the financial statements that may
have been required to maintain the effectiveness of the registration statement
for the 180-day period;
(iii) furnish to the Holders such number of conformed copies of such
registration statement and of each such amendment and supplement thereto (in
each case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the Securities Act,
and such other documents, as the Holders may reasonably request from time to
time;
(iv) use its best efforts (x) to register or qualify all Registrable
Securities and other securities covered by such registration statement under
such other securities or blue sky laws of such states of the United States of
America where an exemption is not available and as the Holders shall reasonably
request, (y) to keep such registration or qualification in effect for so long as
such registration statement remains in effect, and (z) to take any other action
that may reasonably be necessary or advisable to enable the Holders to
consummate the disposition in such jurisdictions of the securities to be sold by
the Holders, except that the Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any jurisdiction
wherein it would not, but for the requirements of this paragraph (iv), be
obligated to be so qualified or to consent to general service of process in any
such jurisdiction;
(v) use its best efforts to cause all Registrable Securities covered by
such registration statement to be registered with or approved by such other
federal or state governmental agencies or authorities as may be necessary in the
opinion of counsel to the Company to consummate the disposition of such
Registrable Securities in accordance with their intended method of disposition;
(vi) furnish to the Holders' underwriters, if any, (x) an opinion of
counsel for the Company, and (y) a "comfort" letter signed by the independent
public accountants who have certified the Company's financial statements
included or incorporated by reference in such registration statement, each
covering substantially the same matters with respect to such registration
statement (and the prospectus included
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therein) and, in the case of the accountant's comfort letter, with respect to
events subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountant's comfort letters
delivered to the underwriters in underwritten public offerings of securities
(and dated the dates such opinions and comfort letters are customarily dated);
(vii) immediately notify the Holders when a prospectus relating thereto
is required to be delivered under the Securities Act, upon discovery that, or
upon the happening of any event as a result of which, the prospectus included in
such registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, in the light
of the circumstances under which they were made, and at the request of the
Holders promptly prepare and furnish to them a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made;
(viii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least 12 months, but not more than 18 months, beginning with the
first full calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of section
11(a) of the Securities Act and Rule 158 promulgated thereunder, and promptly
furnish the same to the Holders; and
(ix) provide and cause to be maintained a transfer agent and registrar
(which, in each case, may be the Company) for all Registrable Securities covered
by such registration statement from and after a date not later than the
effective date of such registration.
The Company may require the Holders to furnish the Company such
information regarding the Holders and the distribution of the Holders'
Registrable Securities as the Company may from time to time reasonably request
in writing, based on its reasonable belief that such information is required to
be disclosed in the Registration Statement pursuant to the Securities Act and
applicable State securities laws.
Upon receipt of any notice from the Company of the happening of an
event of the kind described in item (vii) of this section 3, the Holders shall
forthwith discontinue their disposition of Registrable Securities pursuant to
the registration statement relating to such Registrable Securities until the
Holders' receipt of the copies of the supplemented or amended prospectus
contemplated by item (vii) and, if so directed by the Company, the Holders shall
deliver to the Company all copies, other than permanent file copies, then in the
Holders'
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possession, of the prospectus relating to such Registrable Securities current at
the time of receipt of such notice.
4. Underwritten Offerings.
4.1 Piggyback Underwritten Offerings. If the Company proposes to
register any of its securities under the Securities Act as contemplated by
section 2 and such securities are to be distributed by or through one or more
underwriters, the Company shall, subject to the provisions of section 2
(including, without limitation, the provisions of sections 2.2), if requested by
the Holders, arrange for such underwriters to include all the Registrable
Securities to be offered and sold by the Holders with and among the securities
of the Company to be distributed by such underwriters. The Holders shall become
a party to the underwriting agreement negotiated between the Company and such
underwriters and shall make all representations and warranties to and shall
enter into all agreements with the Company or the underwriters as shall be
reasonably requested of them including all representations and warranties
required by law, customarily given or reasonably requested of selling
shareholders by an underwriter in an underwritten public offering.
4.2 Holdback Agreements.
(a) If the Company, in connection with an underwritten offering of
securities for its own account, at any time shall register shares of Common
Stock under the Securities Act for sale to the public (other than on Forms S-4
or S-8 or a shelf registration), the Holders shall not sell pursuant to an
effective registration statement, publicly make any short sale of, publicly
grant any option for the purchase of, or otherwise publicly dispose of any
Shares (other than those Shares included in such registration pursuant to
section 2) without the prior written consent of the managing underwriter for a
period required by the underwriters and designated by the Company, which period
shall begin not more than thirty (30) days prior to the effectiveness of the
registration statement pursuant to which such public offering shall be made and
shall last not more than one hundred eighty (180) days after the effective date
of such registration statement in the case of the Company's initial public
offering, or ninety (90) days after the effective date of such registration
statement in the case of any such other offering. The Company may legend and
impose stop transfer instructions on any certificate evidencing Registrable
Securities relating to the restrictions provided in this section 4.2.
(b) During the 15-day period prior to the effective date of any
registration statement of Registrable Securities pursuant to an underwritten
public offering and during the 90-day period beginning on that effective date,
the Company shall not (except as part of such registration) effect any public
sale or distribution of any of its equity securities or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company (other than in connection with any employee stock option or other
benefit plan).
4.3 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this agreement, the
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Company shall give the Holders, their underwriters, if any, and their respective
counsel and accountants the opportunity to participate in the preparation of
such registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and give each of
them such access to its books and records, such opportunities to discuss the
business of the Company with officers and the independent public accountants who
have certified its financial statements as shall be necessary, in the opinion of
the Holders' and such underwriters' respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
5. Indemnification.
5.1 Indemnification by the Company. In the event of any registration
statement filed pursuant to section 2, the Company shall, and hereby does,
indemnify and hold harmless each of the Holders and each of their directors,
officers, partners, agents, attorneys, representatives and affiliates and each
other individual, group, partnership, corporation, business trust, joint stock
company, trust, unincorporated association, joint venture or other entity of
whatever nature ("Person") who participates as an underwriter in the offering or
sale of such securities and each other Person, if any, who controls any Holder
or any such underwriter within the meaning of the Securities Act (each of the
foregoing, a "Holder Indemnitee"), insofar as losses, claims, damages, or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any such registration
statement, any preliminary prospectus, final prospectus, or summary prospectus
contained therein, or any amendment or supplement thereto, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances in
which they were made not misleading, and the Company shall reimburse each Holder
Indemnitee for any legal or any other fees, costs and expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, liability, action or proceeding; provided, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or omission made in reliance upon and in
conformity with information furnished to the Company by or on behalf of a Holder
or such underwriter, as the case may be, for use in the preparation thereof; and
provided, further, that the Company shall not be liable to any Holder Indemnitee
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of such Person's
failure to send or give a copy of the final prospectus, as the same may be then
supplemented or amended, to the Person asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus so long as such
final prospectus, and any amendments or supplements thereto, have been furnished
to such underwriter or any Holder, as applicable.
5.2 Indemnification by the Holders. If any Registrable Securities are
included in any registration statement, the Holders of such Registrable
Securities so registered shall, and
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hereby do, severally and not jointly, indemnify and hold harmless (in the same
manner and to the same extent as set forth in section 5.1 above) the Company,
and each director and officer of the Company, and each other Person, if any, who
controls the Company within the meaning of the Securities Act, with respect to
all losses, claims, damages, expenses or liabilities ("Losses") to which the
Company or such control person becomes subject under the Securities Act, insofar
as such Losses arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
any preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or an omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information pertaining to such Holder and furnished
to the Company by such Holder for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement, provided, however, that no Holder shall have any
liability under this section 6.2 for any amount in excess of the net proceeds
actually received by such Holder from the sale of the Registrable Securities
included in such registration statement.
5.3 Notice of Claims, Etc.
(a) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in
sections 5.1 or 5.2, such indemnified party will, if a claim in respect thereof
is to be made against an indemnifying party, immediately give written notice to
the latter of the commencement of such action; provided, however, that the
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its indemnity obligations, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless in the reasonable judgment of counsel for such indemnified party, a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim (in which case the indemnified party shall be entitled
to retain separate counsel as provided below), the indemnifying party shall be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that it may wish and
at any time, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof other
than reasonable costs related to the indemnified party's cooperation with the
indemnifying party provided, however, that (i) if the indemnifying party fails
to assume the defense of such claim after a reasonable time the indemnified
party may retain counsel to defend such claim and the reasonable fees and
expenses of such counsel shall be paid by the indemnifying party, (ii) the
indemnified party may, at its own expense, retain separate counsel to
participate in such defense, (iii) the indemnified party shall have the right to
employ separate counsel at the expense of the indemnifying party and to control
its own defense of such action, claim or proceeding if, in the reasonable
opinion of counsel to such indemnified party, a material conflict or potential
material conflict exists between the indemnified party and
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the indemnifying party that would make such separate representation advisable,
except that in no event shall the indemnifying party be required to pay fees and
expenses under this section 6 for more than one separate firm of attorneys in
any one legal action or group of related legal actions.
(b) No indemnifying party shall be liable for any settlement of any
action or proceeding effected without its written consent, which consent shall
not be unreasonably withheld. No indemnifying party shall, without the consent
of the indemnified party, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
5.4 Contribution. If indemnification shall for any reason be held by a
court to be unavailable to an indemnified party under section 5.1 or section 5.2
in respect of any loss, claim, damage or liability, or any action in respect
thereof, then, in lieu of the amount paid or payable under section 5.1 or
section 5.2, as applicable, the indemnified party and the indemnifying party
shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating the same), (i) in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the Holders on the other hand
that resulted in such loss, claim, damage or liability, or action in respect
thereof, with respect to the statements or omissions that resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations or (ii) if the allocation provided by item (i)
above is not permitted by applicable law, in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the one
hand and the Holders on the other provided, however, that no Holder shall have
any liability under this section 5.4 for any amount in excess of the net
proceeds actually received by such Holder from the sale of the Registrable
Securities included in such registration statement. No Person guilty of
fraudulent misrepresentation (within the meaning of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. In addition, no Person shall be obligated to contribute
hereunder any amounts in payment for any settlement of any action or claim,
effected without such Person's consent, which consent shall not be unreasonably
withheld.
5.5 Rule 144. With a view to making available the benefits of certain
rules and regulations of the Commission that may at any time permit the sale of
the Registrable Securities to the public without registration, at all times from
and after 90 days following the effective date of the first registration of the
Company under the Securities Act of an offering of its securities to the public,
the Company shall:
(a) use its best efforts to facilitate the sale of the Registrable
Securities to the public, without registration under the Securities Act,
pursuant to Rule 144 promulgated under the Securities Act, provided that this
shall not require the Company to file reports under the Securities Act and the
Securities Exchange Act of 1934, or any similar federal statute, and the rules
and regulations of the Commission thereunder ("Exchange Act"), at any time prior
to the Company's being otherwise required to file such reports;
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(b) make and keep public information available, as those terms are
understood and defined in Rule 144 promulgated under the Securities Act at all
times after 90 days after the effective date of the first registration under the
Securities Act filed by the Company for an offering of its securities to the
general public;
(c) use its best efforts to then file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(d) deliver to the Holders, upon any Holder's request, a written
statement as to whether it has complied with the requirements of this section 5,
a copy of the most recent annual or quarterly report of the Company filed with
the Commission or any stock exchange or self regulatory organization [registered
under the Securities Exchange Act of 1934], and such other reports and documents
so filed as a Holder may reasonably request to avail itself of any rule or
regulation of the Commission allowing it to sell its Registrable Securities
without registration.
6. Representations and Warranties of the Company and the Stockholder.
The Company and the Stockholder hereby represent and warrant to the other as set
forth below (all of such representations and warranties to survive the execution
and delivery of this agreement):
(a) Binding Effect. This agreement has been duly executed and delivered
by the Company or the Stockholder, as applicable, and constitutes the legal,
valid and binding obligation of such party enforceable against such party in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity relating to
enforceability.
(b) Power; Authorization; Non-Contravention. Each of the Company and
the Stockholder, as applicable, has all power and authority to execute, deliver
and perform his, her or its obligations under this agreement. The execution,
delivery and performance by each of the Company or the Stockholder, as
applicable, of this agreement and the consummation of the transactions
contemplated hereby, (i) has been duly authorized by all necessary corporate or
limited liability company, and if required, stockholder action, as applicable,
on the part of or on behalf of such party and (ii) does not violate, contravene
the terms of, or exceed the authority grant under, any agreement, document or
instrument of or applicable to such party.
7. Miscellaneous.
(a) Notices. All notices, instructions and other communications in
connection with this agreement shall be in writing and may be given by (i) fax
(with evidence of receipt) followed by letter or other delivery, (ii) personal
delivery or (iii) by a nationally recognized overnight courier in each case to
the parties at the address of the Company as follows, and at the address of the
Stockholders as set forth on the signature page to this agreement (or at such
other address as the Company or the Stockholders may specify):
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If to the Company:
MedSource Technologies, Inc.
110 Cheshire Lane, Suite 100
Minneapolis, Minnesota 55447
Telecopier No.: (612) 807-1235
Attention: Chief Executive Officer
With a copy to:
Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Telecopier No.: (212) 704-6288
If to the Stockholder, to the address set forth on the signature page
below.
(b) No Waiver. No course of dealing and no delay on the part of any
party hereto in exercising any right, power or remedy conferred by this
agreement shall operate as a waiver thereof or otherwise prejudice such party's
rights, powers and remedies conferred by this agreement or shall preclude any
other or further exercise thereof or the exercise of any other right, power and
remedy.
(c) Binding Effect; Assignability. This agreement shall be binding upon
and, except as otherwise provided herein, shall inure to the benefit of the
respective parties and their permitted successors and assigns.
(d) Severability. Any provision of this agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereby waive any provision of law which renders any provisions hereof prohibited
or unenforceable in any respect.
(e) Modification. No term or provision of this agreement may be
amended, altered, modified, rescinded or terminated except upon the express
written consent of the party against whom the same is sought to be enforced.
(f) Law Governing. This agreement shall be governed by and construed in
accordance with the law of the state of New York, applicable to agreements made
and to be
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performed entirely in New York, without regard to the principals of conflicts of
law of such state.
(g) Amendment to Securities Laws. The Company (on the one hand) and the
Stockholders (on the other hand) agree that any amendment to federal securities
laws (and regulations promulgated thereunder (and related registration forms)
and related state securities laws) shall not affect the substantive registration
requirements (and other obligations of the Company) set forth in this agreement;
and, following any such amendment, the Company shall continue to be required to
cause the registration of the Registrable Securities (and pay all Registration
Expenses and provide indemnification pursuant to section 5.1) under the federal
securities laws, as amended, in a manner consistent with carrying out the intent
and purposes of (and on terms as similar as practicable as the terms set forth
in) this agreement.
(h) Headings. All headings and captions in this agreement are for
purposes of reference only and shall not be construed to limit or affect the
substance of this agreement.
(i) Entire Agreement. This agreement contains, and is intended as, a
complete statement of all the terms of the arrangements between the parties with
respect to the matters provided for, supersedes any previous agreements and
understandings between the parties with respect to those matters and cannot be
changed or terminated orally.
[The next page is the signature page]
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The parties have executed and delivered this Registration Rights
Agreement as of the date first written above.
MEDSOURCE TECHNOLOGIES, INC.
By: /s/ RICHARD EFFRESS
--------------------------------
Name: Richard J. Effress
Title: Chief Executive Officer
THOMAS WEISEL PARTNERS LLC
By: /s/
--------------------------------
Name:
Title:
Address:
390 Park Avenue, 16th Floor
New York, New York 10022
Telecopier No.: (212) 271-3720
Attention: Thomas L. Elzner
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