Exhibit 10.5
REGISTRATION RIGHTS AGREEMENT
January 31, 2000
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The parties to this agreement (this "Agreement") are MedSource
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Technologies, Inc., a Delaware corporation (the "Company"), and each of the
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other individuals or entities that has executed a signature page to this
Agreement (each, a "Stockholder").
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Simultaneously with the execution and delivery of this
Agreement, each Stockholder is acquiring shares of the Company's common stock,
par value $.01 per share ("Common Stock"). All of the shares of Common Stock
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acquired by the Stockholders are entitled to the rights and benefits, and
subject to the terms and conditions, of this Agreement, and are collectively
referred to herein as the "Shares".
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Subject to the terms and conditions set forth in that certain
stockholders Agreement, dated of even date hereof between the parties hereto
(the "Stockholders Agreement"), the Company desires to provide to the
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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. Piggyback Registration.
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1.1 Right to Include Registrable Securities.
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(a) Subject to section 1.1(b) and section 6 of this
Agreement, 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 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 (as
defined below) of its intention to do so and of the Holders' rights under this
section 1 at least 20 days prior to the filing of a registration statement with
respect to such registration with the Commission (as defined below). Upon the
written request of any Holder made within 10 days after the receipt of such
notice, which request shall specify the Registrable Securities (as defined
below) intended to be registered and disposed of by such Holder, the Company
shall, subject to the provisions hereof, use its best efforts to effect the
registration under the Securities Act of all Registrable Securities that the
Company has been so requested to register by the Holders.
(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
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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
registration, the Company shall be permitted to delay the registration of any
Registrable Securities for a period equal to the period of delay in the
registration of such other securities.
(c) The Company shall pay all Registration Expenses in connection
with the registration of Registrable Securities requested pursuant to
this section 1.
(d) As used in this Agreement, (i) "Registrable Securities" means
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the Registrable Shares and any other securities issuable by way of a dividend,
distribution, recapitalization, exchange, merger, consolidation, reorganization
or other transaction, (ii) "Registrable Shares" includes the Shares held by the
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Stockholders and their permitted transferees under the Stockholders Agreement;
provided that any such Share shall cease to be a Registrable Share when (A) a
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registration statement with respect to its 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 any successor provision) promulgated under
the Securities Act, (C) it may be disposed of as permitted by, and in compliance
with, subsection (k) of such Rule 144 (or any successor provision) or (D) it
shall have ceased to be outstanding, (iii) "Holders" means the Stockholders and
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their permitted transferees under the Stockholders Agreement, and (iv)
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
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subsequent similar federal statute, and the rules and regulations of the United
States Securities and Exchange Commission or any other federal agency
administering the Securities Act (the "Commission").
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(e) As used in this Agreement, "Registration Expenses" means all
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expenses incident to the Company's performance of or compliance with the
provisions of sections 1, 2 and 3 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), all printing expenses, the fees and disbursements of
counsel for the Company and 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
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shall exclude, and the Holders shall be responsible for the payment of, all
underwriters' fees and underwriting discounts and commissions and transfer taxes
in respect of the Registrable Securities being registered as well as any fees
and expenses of counsel or other advisors to the Holders of the Registrable
Securities.
1.2 Priority in Piggyback Registrations. Anything in section 1.1 to
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the contrary notwithstanding, and subject to section 6, if the managing
underwriter or underwriters of any underwritten public offering of the Company's
securities shall inform the Company in writing of its or their belief that the
number or type of Registrable Securities requested to be included in such
registration would materially and adversely affect such offering, then the
Company shall include in such registration, only those securities which the
Company is advised by the managing underwriter or underwriters can be sold in
(or during the time of) such offering:
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(a) first, all securities proposed by the Company to be sold for
its own account;
(b) then, Registrable Securities to be sold by the holders of
Common Stock that constitute "Registrable Securities" that were (i) converted or
exchanged from shares of the Company's preferred stock ranking senior to the
Common Stock, (ii) held by the Company's institutional lenders or investors or
(iii) received upon exercise of warrants held by holders of any preferred stock
or warrants issued to the Company's institutional lenders or investors; and
(c) then, Registrable Securities to be sold by the Holders and
all other shares of Common Stock outstanding on the date hereof or subsequently
acquired by the holders thereof or that constitute "Registrable Securities"
under and as defined in registration rights agreements containing piggyback
registration rights intended to have the same priority as those provided in this
section 1.2 to be sold by the holders thereof (the "Other Holders") in
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proportion to the respective numbers of their Registrable Securities that are
proposed to be sold in such offering by the Holders and the Other Holders, as
the case may be.
2. Registration Procedures. In connection with the registration of
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any Registrable Securities under the Securities Act as provided in section 1,
the Company shall as expeditiously as possible:
(a) prepare and file with the Commission the requisite
registration statement to affect such registration and thereafter use its best
efforts to cause such registration statement to become and remain effective
(subject to clause (b) below); provided, however, that the Company may
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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;
(b) 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, that such period need not exceed 60 days;
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(c) 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;
(d) use its best efforts (i) 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, (ii) to keep such registration or qualification in
effect for so long as such registration statement remains in effect, and (iii)
to take any other action that may reasonably be necessary or advisable to enable
the Holders to
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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 (d), be
obligated to be so qualified or to consent to general service of process in any
such jurisdiction;
(e) 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;
(f) furnish to the Holders' underwriters, if any, (i) an opinion
of counsel for the Company, and (ii) 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);
(g) 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;
(h) 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
(i) 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.
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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.
Upon receipt of any notice from the Company of the happening
of an event of the kind described in item (g) of this section 2, the Holders
will 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 (g) and, if so directed by the Company, the Holders will
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.
3. Underwritten Offerings.
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3.1 Piggyback Underwritten Offerings. If the Company
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proposes to register any of its securities under the Securities Act as
contemplated by section 1 and such securities are to be distributed by or
through one or more underwriters, the Company may, at its sole discretion and
subject to section 1 (including, without limitation, the provisions of section
1.2 hereof), arrange for such underwriters to include all or any part of 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.
3.2 Holdback Agreements.
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(a) If the Company 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 1) without the prior written consent of the managing underwriter for a
period required by the underwriters and designated by the Company, which period
shall not begin more than thirty (30) days prior to the effectiveness of the
registration statement pursuant to which such public offering shall be made and
shall not last 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 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 3.2.
(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)
affect any public sale or distribution of any of its equity securities or of any
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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. Indemnification.
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4.1 Indemnification by the Company. In the event of any
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registration statement filed pursuant to section 1, the Company shall 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
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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
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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, 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 or other violation of the Securities Act or other laws in connection
with such registration or disposition other than directly resulting from
voluntary actions by the Stockholder, and the Company shall reimburse each
Holder Indemnitee for any legal or any other fees, costs and expenses reasonably
incurred by such Holder Indemnitee in connection with investigating or defending
any such loss, claim, liability, action or proceeding; provided, that the
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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 written information furnished to the Company by or
on behalf of a Holder or such underwriter, as the case may be, expressly for use
in the preparation thereof; and provided, further, that the Company shall not be
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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.
4.2 Indemnification by the Holders. If any Registrable
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Securities are included in any registration statement, the Holders shall
indemnify and hold harmless the Company, and each of the Company's directors,
officers, agents, attorneys, representatives and affiliates, and each other
Person who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls the Company within the
meaning of the Securities Act (each of the foregoing, a "Company Indemnitee"),
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insofar as losses, claims, damages or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or with
respect to any statement contained in, or omission from, such registration
statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged
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omission was made in reliance upon and in conformity with written information
furnished to the Company by the Holders expressly for use in the preparation of
such registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement, and the Holders shall reimburse each
Company Indemnitee for any legal or any other fees, costs and expenses
reasonably incurred by such Company Indemnitee in connection with investigating
or defending any such loss, claim, liability, action or proceeding.
4.3 Notice of Claims, Etc. Promptly after receipt by an
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indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in sections 4.1 or 4.2, 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
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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 such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, 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, 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 latter in connection with the defense thereof other than reasonable costs
related to the indemnified party's cooperation with the indemnifying party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties arises in respect of such
claim after the assumption of the defense thereof. No indemnifying party shall
be liable for any settlement of any action or proceeding affected 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 with respect to such claim or
litigation.
4.4 Contribution. If indemnification shall for any reason be
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held by a court to be unavailable to an indemnified party under section 4.1 or
section 4.2 with respect to any loss, claim, damage or liability, or any action
in respect thereof, then, in lieu of the amount paid or payable under section
4.1 or section 4.2, 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. 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
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shall be obligated to contribute hereunder any amounts in payment for any
settlement of any action or claim, affected without such Person's consent, which
consent shall not be unreasonably withheld. In no event shall the indemnity
provided for in this section 4.4 exceed the gross proceeds from the offering
received by such Holder.
4.5 Other Indemnification. Indemnification and contribution
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similar to that specified in the preceding provisions of this section 4 (with
appropriate modifications) shall be given by the Company and the Holders with
respect to any required registration or other qualification of securities under
any federal or state law or regulation of any governmental authority other than
the Securities Act.
5. Rule 144. With a view to making available the benefits
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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, after
such time as a public market exists for its Common Stock, 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, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "Exchange Act"), at any time
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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 reasonable efforts to 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.
6. Modification by Majority of Equivalent Holders. Anything
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to the contrary contained in this Agreement (including but not limited to
section 1) notwithstanding, the Stockholders hereby consent in advance to any
modification of the rights provided in this Agreement (including but not limited
to any waiver of the rights provided in section 1.1 or section 2 or any
rearrangement of the registration rights priorities in section 1.2) to which a
majority in interest of the Equivalent Holders (as defined below) agree, and,
upon written notice to the Stockholders of any such agreement of the Equivalent
Holders and subject to Section 7(e) herein, this Agreement shall be deemed to be
modified in accordance with such agreement of the Equivalent Holders without any
further action on the part of the Stockholders. For purposes of the foregoing
sentence, (i) "Equivalent Holders" shall be deemed to mean the Stockholders and
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any and all other holders of shares of capital stock of the Company who acquired
such shares from the Company as consideration, in whole or in part, for the sale
of a business (whether in stock purchase, asset purchase or other transactions)
to the Company (a "Business Acquisition") and (ii) a "majority in interest"
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shall refer to the agreement of Equivalent Holders holding a majority of the
shares of Common Stock held by all Equivalent Holders (whether such shares are
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actually issued to the Equivalent Holders or issuable upon conversion of shares
of other securities of the Company obtained in connection with the Business
Acquisitions or upon the exercise of other securities so obtained).
7. Miscellaneous.
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(a) Notices. All notices, instructions and other
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communications in connection with this Agreement shall be in writing and may be
given by personal delivery or mailed, certified mail, return receipt requested,
postage prepaid or by a nationally recognized overnight courier to the parties
at the address of the Company as follows, and at the address of the Holders as
set forth on the signature page to this Agreement (or at such other address as a
party hereto may specify in a notice to the other party):
If to the Company:
MedSource Technologies, Inc.
110 Cheshire Lane, Suite 100
Minneapolis, MN 55305
Attention: Richard J. Effress
With a copy to:
Edward R. Mandell
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, New York 10036-8735
If to a Stockholder:
To the address set forth on the signature
page below.
(b) No Waiver. No course of dealing and no delay on the
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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
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be binding upon and, except as otherwise provided herein, shall inure to the
benefit of the respective parties and their permitted successors and assigns.
This Agreement shall not be assignable except as otherwise provided herein.
(d) Severability. Any provision of this Agreement that
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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
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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
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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
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construed in accordance with the law of the state of Delaware applicable to
agreements made and to be performed entirely in Delaware.
(g) Headings. All headings and captions in this Agreement
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are for purposes of reference only and shall not be construed to limit or affect
the substance of this Agreement.
(h) Entire Agreement. This Agreement contains, and is
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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 remainder of this page is intentionally left blank; the next succeeding
page is a signature page.]
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MEDSOURCE TECHNOLOGIES, INC.
By: /s/ RICHARD J. EFFRESS
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Name: Richard J. Effress
Title: Chairman
/s/ DONALD R. ROCHELO
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Donald R. Rochelo
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MEDSOURCE TECHNOLOGIES, INC.
By: /s/ RICHARD J. EFFRESS
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Name: Richard J. Effress
Title: Chairman
/s/ DONNA L. ROCHELO
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Donna L. Rochelo
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