EXHIBIT 10.6
REGISTRATION RIGHTS AGREEMENT
October 25, 2000
The parties to this agreement are MedSource Technologies, Inc. a
Delaware corporation (the "Company"), and each of the stockholders listed on
Schedule A to this agreement and executing a signature page to this agreement
(the "Stockholders").
The Stockholders own or are acquiring shares of the Company's 6.0%
Cumulative Convertible Redeemable Preferred Stock, Series C, par value $.01 per
share (the "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 Series C Preferred Stock and the shares of
Common Stock underlying the shares of Series C Preferred Stock currently held by
the Stockholders 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) "Demand Notice" means a written request from Holders to register at
least 25% of the Registrable Securities;
(c) "Holders" means the Stockholders and their respective permitted
transferees who hold Shares.
(d) "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.
(e) "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.
(f) "Registrable Securities" means the Shares and any other securities
issuable in replacement thereof by way of a dividend, stock split,
recapitalization, exchange, merger, consolidation, reorganization or other
transaction; provided, however, that any share shall cease to be a Registrable
Security under this agreement when (i) a registration statement with respect to
such share's public sale shall have become effective under the Securities Act
and such securities shall have been disposed of in accordance with such
registration statement, (ii) 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.
(g) "Registration Expenses" means all expenses incident to the
Company's performance of or compliance with the provisions of sections 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 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 of the Holders whose Registrable
Securities are included in the registration statement, with such counsel
selected by a majority-in-interest of the Holders participating in the offering
(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).
(h) "Securities Act" means the Securities Act of 1933, and any
subsequent similar federal statute, and the rules and regulations promulgated
thereunder.
2. Demand Registration and Shelf Registration.
2.1 Rights to Demand Registration.
(a) If, at any time (and from time to time) after the 180th day
following the date on which any registration statement pursuant to which the
Company shall have initially registered (i) shares of Common Stock, or (ii)
securities providing the holder thereof the right to acquire shares of Common
Stock, under the Securities Act for sale to the public shall have been declared
effective, the Company shall receive a Demand Notice, the Company shall promptly
give written notice of such proposed registration to all other Holders and shall
offer to include in such proposed registration any Registrable Securities
requested to be included in such proposed registration by the Holders who shall
respond in writing to the Company's notice within 10 days after receipt
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by the Holders in question of such notice (which response shall specify the
number of Registrable Securities proposed to be included in such registration).
Subject to section 2.2, the Company shall promptly use its best efforts to
effect such registration under the Securities Act of the Registrable Securities
that the Company has been so requested to register on such appropriate
registration form of the Commission as shall be selected by the Company. The
Company shall pay all Registration Expenses incurred in connection with a
registration of Registrable Securities pursuant to this section 2.1.
(b) A registration requested pursuant to this section 2.1 shall not be
deemed to have been effected (i) unless a registration statement with respect
thereto has become effective and remained effective in compliance with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement until the earlier
of (x) such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement and (y) 180 days after the
effective date of such registration statement, except with respect to any
registration statement filed pursuant to Rule 415 under the Securities Act, in
which case the Company shall use its commercially reasonable efforts to keep
such registration statement effective until such time as all of the Registrable
Securities cease to be Registrable Securities, (ii) if, after it has become
effective, such registration is interfered with by any stop order, injunction or
other order or requirement of the Commission or other governmental agency or
court for any reason not attributable to the Holders and has not thereafter
become effective, or (iii) if the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
registration are not satisfied or waived, other than by reason of a failure on
the part of the Holders.
2.2 Limits on Demand Rights.
(a) The Company shall not be obligated to file and cause to become
effective (i) more than four registration statements pursuant to Demand Notices;
provided, however, that in addition thereto, the Stockholders may require the
Company to file registration statements on Form S-3 from time to time (in the
manner contemplated by section 2.4 below), if the use of such Form is available
to the Company; and (ii) during the period beginning 30 days prior to the filing
and ending 90 days following the effective date, of a registration statement
filed by the Company and relating to an underwritten offering in which a
majority of the shares are being sold by the Company for its own account.
(b) Unless the Company shall have delayed the commencement of a
registration statement pursuant to section 2.2(a)(ii) above or section 2.2(c)
below, the Company may delay the filing or effectiveness of any registration
statement for a period of up to 60 days after the date of delivery of the Demand
Notice pursuant to this section 2 if at the time of such request the Company is
engaged in a firm commitment underwritten public offering of Company Shares in
which the Stockholders may include Registrable Securities pursuant to section 3,
provided, however, that, in the event the Company exercises its rights under
this section 2.2(b), the registration shall not be counted as a demand for
registration by any Stockholder for purposes of section 2.2(a)(i) hereof.
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(c) If, while a registration request is pending pursuant to section
2.1, the Company has been advised by legal counsel that (i) the filing of a
registration statement would require the disclosure of a material transaction or
other factor that the Company reasonably determines in good faith would have a
material adverse effect on the Company or (ii) the Company then is unable to
comply with Commission requirements applicable to the requested registration,
then in each instance the Company shall not be required to effect a registration
pursuant to this section 2 until the earlier of (A) the date upon which such
material information is otherwise disclosed to the public or ceases to be
material or the Company is able to so comply with applicable Commission
requirements, as the case may be, and (B) 60 days after the Company has been so
advised by legal counsel, provided that in the event the Company exercises its
rights under this section 2.2(c), the registration shall not be counted as a
demand for registration by any Stockholder for purposes of section 2.2(a)(i)
hereof, and provided further that the Company may not exercise its right under
this section 2.2(c) more than once in any 12-month period or for more than 60
days in the aggregate during such period.
(d) A requested registration under this section 2 may be rescinded by
written notice to the Company by the Holder or Holders initiating such request.
Such rescinded registration shall not count as a registration statement
initiated pursuant to this section 2 for purposes of section 2.2 above if such
request is rescinded by such Holder or Holders not later than five business days
prior to the filing of a registration statement with the Commission. If such
rescission is in connection with a delay of a registration by the Company or a
cutback in the number of Registrable Securities that may be sold by a Holder, or
as a result of any other postponement of such filing (other than as a result of
the fault of such Holder), the Company shall pay all Registration Expenses.
2.3 Underwriter "Cutbacks" in Demand Registrations. With respect to any
registration 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 the
other stockholders of the Company selling Other Securities in such registration
(voting together as a single class) (which approval shall not be unreasonably
withheld), and the Company may include in such registration any Other
Securities; provided, however, that, anything to the contrary in section 2.1
notwithstanding, 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 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 and its affiliates (or that each such Person and its
affiliates have the right to acquire) at the time of such registration.
2.4 Shelf Registration.
(a) When (and for so long as) the Company is eligible to use Form S-3
(or a successor form), the Company shall file an "evergreen" shelf registration
statement
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with respect to the Registrable Securities and pursuant to Rule 415 under the
Securities Act (the "Shelf Registration") on Form S-3 (or such successor form).
The Company shall use its commercially reasonable efforts to have the Shelf
Registration declared effective as soon as practicable after such filing, and
shall use its commercially reasonable efforts to keep the Shelf Registration
effective and updated, from the date such Shelf Registration is declared
effective until such time as all of the Registrable Securities shall cease to be
Registrable Securities, but in no event longer than 36 months. Notwithstanding
the foregoing, if the Company makes a good faith determination that a filing of
the Shelf Registration or the sale of any Registrable Securities under an
effective Shelf Registration would interfere with any material financing or
material investment transaction, business combination or material acquisition
then under consideration, involving the Company or any of its affiliates, and
the Company provides notice (the "Shelf Notice") to the Holders containing a
general statement of the reasons for such determination (which shall be kept
confidential by such Holders), the Company may postpone the filing of the Shelf
Registration for the period indicated in the Shelf Notice (which shall be kept
confidential by such holders), which period shall in no event exceed 90 days.
(b) The Company shall supplement or amend, if necessary, the Shelf
Registration, as required by the instructions applicable to such registration
form or by the Securities Act or as reasonably required by the holders of (or
any underwriter for) more than 50% of the Registrable Securities and the Company
shall furnish to the holders of the Registrable Securities to which the Shelf
Registration relates copies of any such supplement or amendment prior to its
being used and/or filed with the Commission. The Company shall pay all
Registration Expenses in connection with the Shelf Registration, whether or not
it becomes effective, and whether all, none or some of the Registrable
Securities are sold pursuant to the Shelf Registration.
(c) A Shelf Registration pursuant to this section 2.5 shall not be
deemed to have been effected (i) unless a Shelf Registration has become
effective and remained effective in compliance with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities and
until such time as all of such Registrable Securities have been disposed of
under the Shelf Registration, but in no event longer than 36 months or (ii) if
after it has become effective, the Shelf Registration is interfered with by any
stop order, injunction or other order or requirement of the Commission or other
governmental agency or court and has not thereafter become effective.
3. Piggyback Registration.
3.1 Right to Include Registrable Securities.
(a) Subject to section 3.1(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
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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 3 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 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 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. No registration effected pursuant under this
section 3.1 shall relieve the Company of its obligations to effect any
registration under section 2.
(c) The Company shall pay all Registration Expenses in connection with
registration of Registrable Securities requested pursuant to this section 3.1.
3.2 Underwriter "Cutbacks" in Piggyback Registrations. Anything in
section 3.1 to the contrary notwithstanding, with respect to any registration
pursuant to which shares are registered pursuant to this section 3 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 Persons 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.
4. Registration Procedures. In connection with the registration of any
Registrable Securities under the Securities Act as provided in sections 2 and 3,
the Company shall as expeditiously as possible:
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(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;
(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, except with respect to any registration statement filed
pursuant to Rule 415 under the Securities Act if the Company is eligible to file
a registration statement on Form S-3, in which case the Company shall use its
commercially reasonable efforts to keep the registration statement effective and
updated, from the date such registration statement is declared effective until
such time as all of the Registrable Securities cease to be Registrable
Securities;
(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,
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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 each seller of Registrable Securities and the Holders'
underwriters, if any, at the effective date of such registration statement, (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 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;
(ix) provide and cause to be maintained a transfer agent and registrar
(which, in each case, may be the Company) for all Registrable Securities
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covered by such registration statement from and after a date not later than the
effective date of such registration;
(x) cause representatives of the Company to participate in any "road
show" or "road shows" reasonably requested by any underwriter of an underwritten
or "best efforts" offering of any Registrable Securities;
(xi) use its commercially reasonable efforts to list all Registrable
Securities covered by such registration statement on the National Market System
of the Nasdaq Stock Market or any national securities exchange on which
Registrable Securities of the same class covered by such registration statement
are then listed and, if no such Registrable Securities are so listed, on the
National Market System of the Nasdaq Stock Market or any national securities
exchange on which the Common Stock is then listed; and
(xii) In the case of Registrable Securities that are not Common Stock,
upon the request of holders of a majority of all such Registrable Securities to
be covered by such registration or if advised by the managing underwriter of
such offering, the Company shall reissue the Registrable Securities in
denominations suitable for public trading (by depositary share arrangement or
otherwise).
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; provided, that any such information or
questionnaires shall be given or made by a seller of Registrable Securities
without representation or warranty of any kind whatsoever except representations
with respect to the identity of such seller, such seller's Registrable
Securities and such seller's intended method of distribution or any other
representations required by applicable law.
Upon receipt of any notice from the Company of the happening of an
event of the kind described in item (vii) of this section 4, 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.
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5. Underwritten Offerings.
5.1 Requested Underwritten Offerings. If requested by the underwriters
for any underwritten offering by holders of Registrable Securities pursuant to a
registration requested under section 2, the Company will use its commercially
reasonable efforts to enter into an underwriting agreement with such
underwriters for such offering, such agreement to be reasonably satisfactory in
substance and form to the Company and each Holder and the underwriters and to
contain such representations and warranties by the Company and such other terms
as are generally prevailing in agreements of that type, including, without
limitation, indemnities to the effect and to the extent provided in section 6.
The Holders will reasonably cooperate with the Company in the negotiation of the
underwriting agreement. Such Holders shall be parties to such underwriting
agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such Holders. No Holder shall be required to make any
representations or warranties to, or agreements with, the Company other than
representations, warranties or agreements regarding the identity of such Holder,
such Holder's Registrable Securities and such Holder's intended method of
distribution or any other representations required by applicable law.
5.2 Piggyback Underwritten Offerings. If the Company proposes to
register any of its securities under the Securities Act as contemplated by
section 2 or section 3 and such securities are to be distributed by or through
one or more underwriters, the Company shall, subject to the provisions of
section 2 and section 3 (including, without limitation, the provisions of
sections 2.3 and 3.2), 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 be parties to the underwriting agreement
between the Company and such underwriters and may, at their option, require that
any or all of the representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such underwriters shall also
be made to and for the benefit of such Holders. No Holder shall be required to
make any representations or warranties to, or agreements with, the Company or
the underwriters other than representations, warranties or agreements regarding
the identity of such Holder, such Holder's and such Holder's intended method of
distribution or any other representations required by applicable law.
5.3 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
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registration pursuant to section 2 or section 3) 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 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 120 days after the
effective date of such registration statement in the case of the Company's
initial public offering, or 90 days after the effective date of such
registration statement in the case of any such other offering; provided, that
the restrictions set forth in this section 5.2(a) shall only apply if the
officers, directors and holders of at least 5% of the issued and outstanding
shares of Common Stock are restricted in the same manner. The Company may legend
and impose stop transfer instructions on any certificate evidencing Registrable
Securities relating to the restrictions provided in this section 5.2.
(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).
5.4 Preparation; Reasonable Investigation. In connection with the
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.
6. Indemnification.
6.1 Indemnification by the Company. In the event of any registration
statement filed pursuant to section 2 or section 3, the Company shall, and
hereby does, indemnify and hold harmless each of the Holders and each of their
directors, officers, members, partners, agents, attorneys, representatives and
affiliates and each other individual, group, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, limited liability
company, 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
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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 in
writing by or on behalf of a Holder (pursuant to the penultimate paragraph of
section 4) 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.
6.2 Indemnification by the Holders. If any Registrable Securities are
included in any registration statement, the Holders of such Registrable
Securities so registered shall, and hereby do, severally and not jointly,
indemnify and hold harmless (in the same manner and to the same extent as set
forth in section 6.1 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
(pursuant to the penultimate paragraph of section 4), 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.
6.3 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 6.1 or 6.2, 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 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.
6.4 Contribution. If indemnification shall for any reason be held by a
court to be unavailable to an indemnified party under section 6.1 or section 6.2
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 6.1 or
section 6.2, 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
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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 6.4 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. Such
prospective sellers' obligations to contribute as provided in this section 6.4
are several in proportion to the relative value of their respective Registrable
Securities covered by such registration statement and not joint. 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.
6.5 Other Indemnification Provisions.
(a) Indemnification and contribution provisions similar to those
specified in the preceding subdivisions of this section 6 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities 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.
(b) The indemnification and contribution required by this section 6
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expenses, loss,
damage or liability is incurred.
6.6 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;
(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
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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 6,
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.
7. Representations and Warranties of the Company and the Stockholders.
Each of the Company, on the one hand, and the Stockholder, on the other hand,
hereby represents and warrants to the other as set forth below in this section
7; and all of such representations and warranties shall 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. The Company and the
Stockholder, as applicable, have all power and authority to execute, deliver and
perform his, her or its obligations under this agreement. The execution,
delivery and performance by the Company or the Stockholder, as applicable, of
this agreement and the consummation of the transactions contemplated hereby, (a)
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; or (b) does not violate, contravene the terms of, or
exceed the authority grant under, any agreement, document or instrument of or
applicable to such party.
8. Miscellaneous.
(a) Notices. All notices, instructions and other 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 the Company or the
Holders may specify in a notice to each other):
If to the Company:
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MedSource Technologies, Inc.
110 Cheshire Lane, Suite 1010
Minneapolis, Minnesota 55305
Attention: Chief Executive Officer
With a copy to:
Edward R. Mandell
Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
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
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. This agreement
shall not be assignable except as otherwise provided herein; provided, however,
that the Stockholder shall have the right to assign and transfer all or any
portion of its rights under this agreement to a purchaser of Shares in
accordance with the terms of the Stock Purchase Agreement dated as of October
24, 2000 among the Company, the Stockholder and the other parties named therein.
(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 performed entirely in New York, without regard to the principals of
conflicts of law of such state.
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(g) Amendment to Securities Laws. The Company (on the one hand) and the
Stockholder (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 6.1) 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.
(j) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the holders of Registrable Securities in this Agreement.
Without limiting the generality of the foregoing, the Company will not hereafter
enter into any agreement with respect to its securities that grants, or modify
any existing agreement with respect to its securities to grant, to the holder of
its securities in connection with an incidental registration of such securities
higher priority to the rights granted to the Purchasers under section 3.2.
[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/ FREDERIC BURDITT
--------------------------------
Name: Frederic Burditt
Title: Chief Financial Officer,
Secretary and Treasurer
THE 1818 FUND III, L.P.
By: Brown Brothers Harriman & Co.,
General Partner
By: /s/
--------------------------------
Name:
Title: General Partner
Address:
The 1818 Fund III, L.P.
c/o Brown Brothers Harriman & Co.
59 Wall Street
New York, New York 10005
Attention: T. Michael Long
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Marilyn Sobel, Esq.
[Signatures continued on next page]
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MedSource Technologies, Inc.
Registration Rights Agreement
Stockholder Signature Page
/s/ WILLIAM J. KIDD
-----------------------------------
William J. Kidd
Address:
c/o Kidd & Company, LLC
Three Pickwick Plaza
Greenwich, Connecticut 06830
Telecopier No.: (203) 661-1839
/s/ CARLA G. KIDD
-----------------------------------
Carla G. Kidd
Address:
c/o Kidd & Company, LLC
Three Pickwick Plaza
Greenwich, Connecticut 06830
Telecopier No.: (203) 661-1839
/s/ EDWARD R. MANDELL
-----------------------------------
Edward R. Mandell, not individually
but as Trustee under the William
J. Kidd Grantor Trust
Address:
c/o Kidd & Company, LLC
Three Pickwick Plaza
Greenwich, Connecticut 06830
Attention: William J. Kidd
Telecopier No.: (203) 661-1839
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MedSource Technologies, Inc.
Registration Rights Agreement
Stockholder Signature Page
/s/ ANDREW D. LIPMAN
-----------------------------------
Andrew D. Lipman
Address:
c/o Kidd & Company, LLC
Three Pickwick Plaza
Greenwich, Connecticut 06830
Telecopier No.: (203) 661-1839
/s/ RICHARD J. EFFRESS
-----------------------------------
Richard J. Effress
Address:
c/o Kidd & Company, LLC
Three Pickwick Plaza
Greenwich, Connecticut 06830
Telecopier No.: (203) 661-1839
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MedSource Technologies, Inc.
Registration Rights Agreement
Stockholder Signature Page
/s/ JOHN W. GALIARDO
-----------------------------------
John W. Galiardo
Address:
56 Crooked Tree Lane
Princeton, New Jersey 08540
Telecopier No.:
MANIRE LIMITED PARTNERSHIP
By: Odyssey Corp., its general partner
By: /s/ ROSS MANIRE
--------------------------------
Name: Ross Manire
Title: President
Address:
150 Carleton Avenue
Glen Ellyn, Illinois 60137
Telecopier No.: (630) 858-0568
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