EXHIBIT 10.9
REGISTRATION RIGHTS AGREEMENT
December 31, 2001
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The parties to this agreement are MedSource Technologies, Inc. a Delaware
corporation (the "Company"), and each of the other individuals or entities
executing a signature page to this agreement (collectively, the "Stockholders").
Simultaneously with the execution and delivery of this agreement, the
Stockholders are acquiring the Company's Series E Preferred Stock, par value
$.01 per share ("Series E Preferred Stock"), and Warrants to purchase the
Company's common stock, par value $.01 per share ("Common Stock"), pursuant to a
Stock Purchase Agreement dated as of the date hereof among the Company and the
Stockholders. The shares of Common Stock issuable upon exercise of the Warrants
and upon conversion of the Series E Preferred Stock 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
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
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.
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2.1 Right to Include Registrable Securities.
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(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 commercially
reasonable 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
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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
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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
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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
commercially reasonable 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;
(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
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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 commercially reasonable 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 commercially reasonable 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 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
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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 commercially reasonable 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' possession, of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice.
4. Underwritten Offerings.
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4.1 Piggyback Underwritten Offerings. If the Company proposes to
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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.
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4.2 Holdback Agreements.
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(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
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preparation and filing of each registration statement under the Securities Act
pursuant to this agreement, the 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.
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5.1 Indemnification by the Company. In the event of any registration
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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
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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
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included in any registration statement, the Holders of such Registrable
Securities so registered shall, and 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.
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(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
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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 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
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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
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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
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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 commercially reasonable 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;
(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 commercially reasonable 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
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Company, on the one hand, and each of the Stockholders, on the other hand,
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 such 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
such 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
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the Company or such 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.
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(a) Notices. All notices, instructions and other communications in
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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):
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:
Jenkens & Gilchrist Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Telecopier No.: (212) 704-6288
Attention: Edward R. Mandell
If to a Stockholder, to the address of such Stockholder set forth on
[a] signature page below.
(b) No Waiver. No course of dealing and no delay on the part of any
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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
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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
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or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such
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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
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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
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in accordance with the law of the state of Delaware, applicable to agreements
made and to be performed entirely in Delaware, without regard to the principals
of conflicts of law of such state.
(g) Amendment to Securities Laws. The Company (on the one hand) and
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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]
-11-
The parties have executed and delivered this Registration Rights
Agreement as of the date first written above.
MEDSOURCE TECHNOLOGIES, INC.
By:_____________________________
Name:
Title:
[Stockholder signatures begin on the next page]
S-1
/s/
-----------------------------------------------------
J. Adam Abram
c/o Omega Management Inc.
Headquarters Park
Beta Building, Suite 420
222 Chapel Hill-Nelson Highway
Durham, NC 27709
Roger Anderson Deferred Benefit Plan
c/o Hamilton Capital Partners
200 Business Park Drive
Armonk, New York 10504
By: /s/
--------------------------------------------------
/s/
-----------------------------------------------------
B. William Bonnivier
2637 East Lake Road
Skaneateles, New York 13152
Broe Growth Capital, LLC
c/o Brian McNamara
252 Clayton Street, 4th Floor
Denver, Colorado 80206
By: /s/
--------------------------------------------------
/s/
-----------------------------------------------------
Alan N. Colner
26 Meadow Road
Scarsdale, New York 10583
/s/
-----------------------------------------------------
Nick D'Antona
1102 Cedar View Lane
Franklin, Tennessee 37067
DeBiasi Family Limited Partnership
12 Hillside Avenue
Darien, Connecticut 06820
By: /s/
--------------------------------------------------
S-2
/s/
-----------------------------------------------------
Jeff Dickson
20 Maple Seed Drive
Dallas, Pennsylvania 18612
/s/
-----------------------------------------------------
Paul J. Dobson
374 Silver Street
Hanover, Massachusetts 02339
/s/
-----------------------------------------------------
Bruce Fleisher
7367 Sarimento Place
Delray Beach, Florida 33446
/s/
-----------------------------------------------------
George D. Fowle
3023 Sea Marsh Road
Amelia Island, Florida 32034
/s/
-----------------------------------------------------
Larry Hotaling
3322 Cerrito Court
Naples, Florida 34109
/s/
-----------------------------------------------------
Jacob L. Jacobson
91 Exeter Street
Newton, Massachusetts 02465
/s/
-----------------------------------------------------
Jon Lauck
5105 Forest Grove Lane
Plano, Texas 75093
/s/
-----------------------------------------------------
Eric Lekacz
c/o Flextronics Encl. Systems
Knyvett House, The Causeway
Staines, Middlesex TW 18 3BA
United Kingdom
S-3
/s/
-----------------------------------------------------
Andrew D. Lipman
4 Ledge Meadow Lane
Westport, Connecticut 06880
/s/
-----------------------------------------------------
Roger D.A. Lipman
31 Carey Court
Bexleyheath, Kent DA6 7NT
United Kingdom
/s/
-----------------------------------------------------
Ross Manire
150 Carelton Aenue
Glen Ellyn, Illinois 60137
Mastec Trading AB
PO Box 4
568 21 Killingaryd
Sweden
By: /s/
--------------------------------------------------
/s/
-----------------------------------------------------
Peter J. Neidecker
c/o National Wire & Stamping
2801 South Vallejo Street
Englewood, CO 80110-1298
Marisa A. Timm Revocable Trust
U/A/D May 20, 1997
5561 Churchill Lane
Libertyville, Illinois 60048
By: /s/
--------------------------------------------------
The Tolkoff Family Limited Partnership I
c/o Seedling Enterprises, LLC
150 California Street
Newton, Massachusetts 02458
By: /s/
--------------------------------------------------
S-4
/s/
-----------------------------------------------------
Clarice E. Webb
217 Bridge Street, #E-3
Stamford, Connecticut 06905
/s/
-----------------------------------------------------
William J. Kidd
51 Clapboard Ridge Road
Greenwich, Connecticut 06830
/s/
-----------------------------------------------------
Carla G. Kidd
51 Clapboard Ridge Road
Greenwich, Connecticut 06830
Catherine M. Kidd Grantor Trust
51 Clapboard Ridge Road
Greenwich, Connecticut 06830
By: /s/
--------------------------------------------------
Cara E. Kidd Trust
51 Clapboard Ridge Road
Greenwich, Connecticut 06830
By: /s/
--------------------------------------------------
Thomas C. Kidd Trust
51 Clapboard Ridge Road
Greenwich, Connecticut 06830
By: /s/
--------------------------------------------------
S-5